United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 14, 2021 Decided January 17, 2023

No. 20-5223

AMERICAN FEDERATION OF LABOR AND CONGRESS OF 

INDUSTRIAL ORGANIZATIONS,

APPELLEE

v.

NATIONAL LABOR RELATIONS BOARD,

APPELLANT

Consolidated with 20-5226

Appeals from the United States District Court

for the District of Columbia

(No. 1:20-cv-00675)

Paul A. Thomas, Attorney, National Labor Relations 

Board, and Tyler James Wiese, Attorney, argued the causes for 

appellant/cross-appellee. With them on the briefs were Nancy 

E. Kessler Platt, Associate General Counsel, William G. 

Mascioli, Assistant General Counsel, Dawn L. Goldstein, 

Deputy Assistant General Counsel, Helene D. Lerner, 

Supervisory Attorney, and Molly G. Sykes, Attorney.
2

Matthew J. Ginsburg argued the cause for appellee/crossappellant. With him on the briefs were Leon Dayan and 

Maneesh Sharma.

Before: SRINIVASAN, Chief Judge, PILLARD and RAO, 

Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

Opinion concurring in the judgment in part and dissenting 

in part filed by Circuit Judge RAO. 

PILLARD, Circuit Judge: Unique among major federal 

agencies, the National Labor Relations Board (NLRB or 

Board) sets almost all of its policy through adjudications rather 

than rules. That makes the object of this case—a 2019 NLRB 

rule—somewhat unusual. The American Federation of Labor 

and Congress of Industrial Organizations (AFL-CIO) 

challenges a rule governing the elections in which employees 

vote on whether to be represented by a union. The Board 

promulgated the 2019 Rule without notice and comment, 

asserting that it falls within the Administrative Procedure Act’s 

(APA) exception for “rules of agency organization, procedure, 

or practice.” 5 U.S.C. § 553(b)(A).

The 2019 Rule undid a slate of changes pertaining to 

representation elections that the Board in 2014 had 

promulgated following notice and comment. The Board in 

2019 acted without notice and comment. And it acknowledged 

that the 2014 Rule had achieved its objective of significantly 

reducing the time between a representation petition, an 

election, and the certification of election results, and that 

reversing those changes would result in longer waits for 

elections and the benefits that flow from union representation. 

As the Board explained, and the AFL-CIO agrees, the changes 
3

introduced by the 2014 Rule did not alter the rate at which 

unions win or lose elections. But the Board nonetheless 

promulgated the 2019 Rule, viewing it as an advisable set of 

changes to ensure fair and accurate voting, transparency and 

uniformity, certainty and finality, and efficiency. 

The NLRB argues that the National Labor Relations Act 

(NLRA or Act), 29 U.S.C. §§ 151-69, mandates direct review 

from the Board to the circuit court, see id. § 160(f), and so asks 

us to treat this case arriving on its appeal from district court as 

if it were before us on a petition for direct review by the AFLCIO challenging the 2019 Rule. The Board also asserts that, 

even if the district court had jurisdiction, it erred in holding that 

five challenged provisions of the Rule fall outside the APA’s 

procedural exception. The Board asks us to sustain those 

provisions even though they were not promulgated by notice 

and comment rulemaking. The AFL-CIO cross-appeals, 

arguing that the 2019 Rule as a whole is arbitrary and 

capricious and that the provision concerning ballot 

impoundment specifically is arbitrary and capricious and 

contrary to law. 

We hold that the statutory provision for direct review in 

federal appellate courts of NLRB orders regarding unfair labor 

practices did not divest the district court of jurisdiction over 

rules that are exclusively concerned with representation 

elections, as is the 2019 Rule. On the merits, we hold that the 

district court erred in concluding that none of the five 

challenged provisions comes within the procedural exception; 

we hold that two of them do. Those two are rules of agency 

procedure, so were validly promulgated without notice and 

comment. We affirm the district court’s invalidation of the

rules regarding the eligible employee-voters list, the timeline 

for certification of election results, and election-observer 

eligibility. The AFL-CIO’s challenge to the 2019 Rule as 
4

arbitrary and capricious when considered as a whole fails. 

Finally, we hold that the Rule’s impoundment provision is 

contrary to law, making it unnecessary to address whether it is 

also arbitrary and capricious.

BACKGROUND

The NLRA covers two important topics in labor relations: 

the protection of employees’ right to elect representatives of 

their choice, and the prevention of unfair labor practices. See

29 U.S.C. §§ 158, 159. The Act addresses those topics in 

separate sections, with section 8 prohibiting unfair labor 

practices and providing for enforcement against them, see id. 

§ 158, and section 9 outlining the process for conducting 

elections by which employees may select unions to represent 

them, see id. § 159. As the Board explains in its Rule, the Act’s 

provisions regarding representation “protect the exercise by 

workers of full freedom of association, self-organization, and 

designation of representatives of their own choosing, for the 

purpose of negotiating the terms and conditions of their 

employment or other mutual aid or protection.” 

Representation-Case Procedures, Final Rule, 84 Fed. Reg. 

69,524, 69,524 (Dec. 18, 2019) (hereinafter 2019 Rule). Union 

representation, where employees choose it, is a statutorily 

protected means of advancing many other employee rights and 

interests, including resolving grievances and bargaining 

collectively with employers.

The NLRA provides for direct review in the federal 

appellate courts of at least some NLRB actions. Section 10 of 

the Act, titled “Prevention of unfair labor practices,” includes 

the Act’s only such grant of judicial review directly in a court 

of appeal. See 29 U.S.C. § 160(f). It provides:

Any person aggrieved by a final order of the Board 

granting or denying in whole or in part the relief 
5

sought may obtain a review of such order in any 

United States court of appeals in the circuit wherein 

the unfair labor practice in question was alleged to

have been engaged in or wherein such person resides 

or transacts business, or in the United States Court of 

Appeals for the District of Columbia . . . .

Id. The Act thus provides for direct appellate review of “a final 

order,” and places venue where “the unfair labor practice in 

question” took place. Id. Nowhere does the Act specifically 

address review of Board actions pertaining to representation 

elections. The Act grants the NLRB general rulemaking 

authority in section 6, id. § 156, and references rulemaking 

specific to representation and elections in section 9, id.

§ 159(c)(1). Nothing in either section addresses judicial review 

of NLRB rules as distinct from orders, whether the rules 

address unfair labor practices or representation elections.

The Rule at issue here addresses the representation 

election process, which the NLRA describes in some detail. 

The Act outlines four basic steps for parties to follow to 

organize a secret-ballot election under Board supervision to 

determine whether a union will represent a group of employees. 

First, an employee, union, or employer may file a petition 

with the Board calling for an election among a particular group 

of employees, proposing the group as an appropriate “unit” of 

representation, and seeking either certification or, less 

commonly, decertification of a union as the employees’ 

exclusive collective bargaining representative. See id.; 2019 

Rule, 84 Fed. Reg. at 69,524. Most petitioned-for elections are 

conducted pursuant to an election agreement reflecting the 

parties’ accord on details like the date of the election and the 

employees who may appropriately be included in the 

bargaining unit. Both before and after the Board’s 2014 Rule 
6

changes, more than ninety percent of elections were conducted 

pursuant to agreements. See 2019 Rule, 84 Fed. Reg. at 69,528 

n.16. 

If the parties cannot reach an election agreement, the 

second step is a hearing to develop the record on which a 

Regional Director determines whether a “question of 

representation” exists, i.e., whether the petitioner filed a proper 

petition concerning a unit appropriate for collective bargaining, 

so eligible for an employee vote. See 29 C.F.R. § 102.64. If 

the proposed unit would not be appropriate for the purpose of 

collective bargaining, the Regional Director dismisses the 

petition; if it would be appropriate, the Regional Director issues 

a decision and direction of election setting parameters like the 

election date and the contours of the voting unit. Any party can 

file a request for Board review of the Regional Director’s 

decision and direction of election. 

The third stage is the election itself, in which employees 

vote by secret ballot for or against union representation. The 

parties and the Board may also challenge the eligibility of 

voters during the election, after which they may attempt to 

resolve any such challenges. Challenged ballots the validity of 

which remains unresolved are set aside, and the valid ballots 

are counted at the conclusion of the election. See id. § 102.69. 

The parties litigate the validity of challenged ballots only if 

they are outcome determinative. 

Fourth, after the election, the Board, either itself or 

through its Regional Director, certifies the election results. See 

id. § 102.69(b). If a majority of employees voted for union

representation, the union’s certification as the employees’ 

representative obligates the employer to bargain with it in good 

faith and renders the failure to do so an unfair labor practice. 

See 29 U.S.C. § 158(a)(5). The post-election stage can also 
7

include party objections to the conduct of the election, which 

the Regional Director investigates, potentially calling a postelection hearing to inform the decision on those objections. See 

29 C.F.R. § 102.69(c). A Regional Director’s decision on 

objections is subject to review by the Board in response to a 

party’s request. Id. § 102.69(c)(2). 

The Board first promulgated a set of rules in 1961 setting 

forth steps and standards for the Board to follow in responding 

to petitions raising objections to representation elections—a 

process that the Board has come to refer to as “representation 

cases.” See Miscellaneous Amendments, 26 Fed. Reg. 3,885 

(May 4, 1961). Since then, the Board has acted to make a 

variety of minor, unchallenged amendments to those rules

without prior notice or request for public comment. See

Representation—Case Procedures, Final Rule, 79 Fed. Reg. 

74,308, 74,310 (Dec. 15, 2014) (hereinafter 2014 Rule). In 

2011, the NLRB promulgated a final rule on representation 

cases after notice and comment, but that rule was challenged 

and invalidated because the Board acted without a quorum. See

Chamber of Com. v. NLRB, 879 F. Supp. 2d 18, 20-21, 30 

(D.D.C. 2012). The Board regained a quorum and gave public 

notice and sought comment on the 2014 Rule, which was 

“almost identical” to its 2011 predecessor, AFL-CIO v. NLRB

(AFL I), 466 F. Supp. 3d 68, 76 (D.D.C. 2020), and which was 

twice upheld in full, see Associated Builders & Contractors of 

Tex., Inc. v. NLRB, 826 F.3d 215, 218 (5th Cir. 2016); Chamber 

of Com. v. NLRB, 118 F. Supp. 3d 171, 177 (D.D.C. 2015). 

That 2014 Rule is the backdrop to the rule challenged here.

The 2014 Rule made twenty-five changes to the thenexisting rules for representation cases. See 79 Fed. Reg. at 

74,308-10. Two of the Board’s five members dissented. Id. at 

74,430-60; see also Representation-Case Procedures, Request 

for Information, 82 Fed. Reg. 58,783, 58,783 (Dec. 14, 2017) 
8

(hereinafter 2017 RFI). The 2014 Rule went into effect on 

April 14, 2015, after President Obama vetoed the resolution 

Congress passed disapproving the Rule pursuant to the 

Congressional Review Act, 5 U.S.C. § 801 et seq. See 2017 

RFI, 82 Fed. Reg. at 58,783.

The Board promulgated the 2014 Rule by notice and 

comment rulemaking but asserted that “none of this process 

was required by law” and that “[t]he Board has never engaged 

in notice and comment rulemaking on representation case 

procedures, and all of the proposed changes could have been 

made without notice and comment—in part by adjudication, 

and in part by simply promulgating a final rule.” 79 Fed. Reg. 

at 74,311. In the Board’s view, its amendments were 

“primarily procedural,” any substantive changes “could have 

been made by adjudication,” and the rule was therefore 

“exempt from notice and comment” under the APA. See id. at 

74,311 n.9. 

In late 2017, the NLRB issued a request for information 

concerning the operation of the 2014 Rule. See 2017 RFI, 82 

Fed. Reg. at 58,783. It received nearly 7,000 submissions in 

response. The AFL-CIO, the largest federation of unions in the 

United States, made a submission that included an expert report 

on the effects of the 2014 Rule. The report analyzed data from 

a five-year period straddling the effective date of the 2014 

Rule, comparing the two and a half years of Board data on 

either side of the rule change. In the report, John-Paul 

Ferguson, “a leading academic expert on NLRB elections,” 

AFL-CIO Principal & Response Br. 6, explained that the 2014 

Rule changes produced “a significant decrease in the time 

between petition and election and the time between petition and 

the closing of [representation] cases,” Deferred Appendix 

(D.A.) 103. In contrast to the typical seventy-seven days from 

petition to closing of a representation case before the 2014 
9

Rule, the average time dropped to fifty-six days after the rule. 

D.A. 110. Apart from shorter timelines from petition to 

certification, Ferguson concluded, the 2014 Rule did not cause 

“any other significant changes in case processing variables or 

outcomes.” D.A. 103. He found, among other things, that the 

2014 Rule did not change the rate at which unions win or lose 

elections, D.A. 108-09, nor the incidence or average length of 

pre- or post-election hearings, D.A. 111-12.

Two years later, at a time when one Board seat remained 

unfilled following the end of former Chairman Pearce’s term 

in 2018, a divided four-member Board issued the 2019 Rule. 

See 84 Fed. Reg. at 69,524. The Board expressly invoked the 

procedural exception in section 553(b)(A) of the APA, 84 Fed. 

Reg at 69,528, and asserted that it was “not treating the 

responses to the 2017 Request for Information as notice-andcomment rulemaking,” id. at 69,528 n.12. All told, the Rule 

made fifteen changes to then-current provisions, many of 

which reinstated all or parts of the pre-2014 rules and a handful 

of which were new. See id. at 69,524-26 (concise descriptions), 

69,588-600 (amended rules). Board Member McFerran 

dissented from the 2019 Rule as having arbitrarily and without 

empirical support delayed employees’ enjoyment of their 

NLRA rights by, among other things, slowing the process in 

contested cases to the point of tripling the minimum number of 

days from the filing of a petition for an election to the 

certification of a union. Id. at 69,557-62.

On March 6, 2020, the AFL-CIO filed a four-count 

complaint in district court, claiming that the 2019 Rule as a 

whole violated the APA, and that certain provisions were also 

independently invalid. The parties filed cross-motions for 

summary judgment. The Board also moved to transfer the case 

here from district court, arguing that subsection 10(f) of the 
10

NLRA requires direct appellate review of any NLRB order or 

rule.

On May 30, 2020, one day before the 2019 Rule was set to 

go into effect, the district court issued an order denying the 

Board’s motion to transfer and granting summary judgment to 

the AFL-CIO on the ground that five challenged provisions of 

the Rule did not fall within the APA’s procedural exception. 

About a week later, the court issued an opinion explaining 

those rulings. See AFL I, 466 F. Supp. 3d at 74. The AFL-CIO 

moved for reconsideration, requesting that the district court 

rule on its remaining claims. On July 1, 2020, the court issued 

a supplemental memorandum opinion and order denying the 

remainder of the AFL-CIO’s claims. See AFL-CIO v. NLRB

(AFL II), 471 F. Supp. 3d 228, 234 (D.D.C. 2020).

Our review of both the district court’s determination on 

jurisdiction and its rulings on summary judgment is de novo.

DISCUSSION

I. Jurisdiction

The Board first argues that subsection 10(f) of the NLRA, 

which all agree provides direct review in federal appellate 

courts of at least some “final order[s] of the Board,” 29 U.S.C. 

§ 160(f), should be read to require direct circuit-court review 

of the AFL-CIO’s challenge to the 2019 Rule. The Board does 

not identify any material effect of that position on our 

consideration of this case: Our review is de novo in any event, 

and the AFL-CIO’s filing here concededly would be timely 

even were we to treat it as a petition for direct review. But 
11

because it reads the statute to require direct review, the Board 

urges us to exercise original rather than appellate jurisdiction. 

The text of section 10(f) is seemingly limited to orders 

regarding unfair labor practices, and we are reviewing a rule 

unrelated to such practices. But we have held that directreview statutes providing for our review of “orders” authorize 

us to review rules. N.Y. Republican State Comm. v. SEC

(NYRSC), 799 F.3d 1126, 1129-30, 1133 (D.C. Cir. 2015); Inv. 

Co. Inst. v. Bd. of Governors of the Fed. Rsrv. Sys., 551 F.2d 

1270, 1278 (D.C. Cir. 1977); see also Fla. Power & Light Co. 

v. Lorion, 470 U.S. 729, 737 (1985). That approach makes 

good sense here, because when Congress enacted the NLRA in 

1935 “courts generally declined to engage in pre-enforcement 

review of agency rules,” NYRSC, 799 F.3d at 1134, so 

Congress spoke of “orders” as shorthand for final agency 

action. 

There is some reason to think Congress’s reference to “the 

unfair labor practice in question” in its direct-review 

authorization encompasses judicially reviewable Board rules 

governing representation procedures. It is at least conceivable

that the direct-review provision is limited to “unfair labor 

practice” orders because Congress provided for review of 

representation disputes only via review of “orders of the Board 

prohibiting unfair labor practices,” AFL v. NLRB, 308 U.S. 

401, 409 (1940); see Nat’l Hot Rod Ass’n v. NLRB, 988 F.3d 

506, 508 (D.C. Cir. 2021), not because Congress sought to treat 

representation rules differently from unfair labor practice rules. 

As a practical matter, it is not apparent why challenges to 

representation rules should be heard first in the district court 

while challenges to unfair labor practice rules come directly 

here: Both are decided on the administrative record and benefit 

from prompt resolution. Our precedent, moreover, takes a 

generous approach to direct-review statutes: Where Congress 
12

gives us mixed signals, we resolve statutory ambiguity in favor 

of direct review in the courts of appeals. See Nat’l Auto. 

Dealers Ass’n v. FTC, 670 F.3d 268, 270 (D.C. Cir. 2012). 

That said, we are ultimately unpersuaded that any 

implications from the vintage of the NLRA or policy 

arguments for a common review path suffice to overcome the 

textual reference to “unfair labor practice” in subsection 10(f) 

and other statutory indicia that distinguish unfair labor practice 

rules from those addressing representation procedures. “In this 

circuit, the normal default rule is that persons seeking review 

of agency action go first to district court rather than to a court 

of appeals.” Id. (internal quotation marks and citations 

omitted). It is the exception that “[i]nitial review of agency 

decisions occurs at the appellate level”—an exception reserved 

for cases as to which “a direct-review statute specifically gives 

the court of appeals subject-matter jurisdiction to directly 

review agency action.” Id. (internal quotation marks and 

citations omitted). 

Applying those principles to the text of subsection 10(f) 

and the overall structure of the NLRA, we hold that the district 

court correctly exercised jurisdiction over the AFL-CIO’s 

challenge to the 2019 Rule. Section 10 of the NLRA, 

addressing the “[p]revention of unfair labor practices,” 29 

U.S.C. § 160, provides for direct review in federal courts of 

appeals from some final actions of the Board, id. § 160(f). 

Subsection 10(f) specifies that review may be had in this court 

or “in the circuit wherein the unfair labor practice in question 

was alleged to have been engaged” (or, although not relevant 

here, in the circuit wherein the petitioner “resides or transacts 

business”). Id. The district court correctly reasoned that 

subsection 10(f)’s textual reference to unfair labor practices, 

combined with the absence of any mention of determinations 

governing representation or elections, “strongly suggests that 
13

the provision is only triggered when some kind of unfair labor 

practice is at issue.” AFL I, 466 F. Supp. 3d at 84. The 

statutory phrase defining appellate-court venue options by 

reference to “the unfair labor practice in question,” a specific 

iteration of a broader category, implies that the overall 

provision’s object is that category—unfair labor practices—

which does not include NLRA rules regarding representation 

elections. 29 U.S.C. § 160(f) (emphases added).

It is undisputed that unfair labor practices—whether 

specifically or in general—are not at issue in this preenforcement challenge to the 2019 Rule, which concerns 

exclusively elections regarding union representation. And 

nowhere in subsection 10(f) or anywhere else in section 10 is 

there any reference to elections or representation. Rather, 

subsection 10(f) communicates “that what is being directed to 

the court of appeals” for the purpose of direct review is NLRB 

final orders (and, per binding precedent, rules) concerning 

unfair labor practices. AFL I, 466 F. Supp. 3d at 84. 

The placement of the direct-appellate-review provision 

within section 10 confirms that conclusion. To start, the 

section title, “Prevention of unfair labor practices,” announces 

its topical focus. 29 U.S.C. § 160; see Almendarez-Torres v. 

United States, 523 U.S. 224, 234 (1998). And the subsections 

surrounding 10(f) make explicit their concern with unfair labor 

practices. Cf. Territory of Guam v. United States, 141 S. Ct. 

1608, 1613 (2021) (considering the “family” of provisions 

when interpreting one specific provision). Subsection 10(a) 

empowers the Board “to prevent any person from engaging in 

any unfair labor practice (listed in section 158 of this title) 

affecting commerce.” 29 U.S.C. § 160(a). Subsection 10(b) 

describes the Board’s power to issue and pursue complaints 

regarding charges of unfair labor practices. See id. § 160(b). 

Subsection 10(c) states that if, after taking testimony and 
14

potentially hearing argument on an unfair labor practice 

charge, the Board believes that an unfair labor practice has 

occurred, it shall, among other things, issue “an order 

requiring such person to cease and desist from such unfair 

labor practice.” Id. § 160(c). And subsection 10(e), in terms 

parallel to 10(f), allows the Board to petition for enforcement 

of its orders in any circuit court “wherein the unfair labor 

practice in question occurred or wherein such person resides 

or transacts business.” Id. § 160(e). This context suggests 

that, like its sister provisions, 10(f) is concerned solely with 

unfair labor practices, not representation matters.

The structure of the entire NLRA underscores Congress’s 

separate treatment of unfair-labor-practice and unionrepresentation matters, further clarifying that subsection 10(f) 

applies only to the former. As described above, Congress 

addressed those two core categories of issues in separate 

statutory sections: representation matters in section 9, id.

§ 159, and unfair labor practices matters in section 8, id. § 158. 

That structural separation reinforces that subsection 10(f)—

with its express reference to unfair labor practices but no 

mention of representation—does not extend to the 

representation-case rules at issue here.

Against those textual and structural indicia, the Board’s 

counterarguments fall short. First, the Board’s principal 

argument attacks a strawman. The Board points out that we 

have held that the term “order” in other direct-review statutes 

encompasses agency rules, see NLRB Principal Br. 18-23

(citing NYRSC, 799 F.3d at 1129-30, 1133; Inv. Co. Inst., 551 

F.2d at 1278), and asserts that subsection 10(f) is ambiguous as 

to whether its use of the term “order” includes NLRB rules like 

the one at issue here. True enough. But the obstacle is not that 

subsection 10(f)’s reference to “orders” bars us from reviewing 

a rule. The difficulty for the Board is the subject matter not the 
15

form of the challenged agency action. As the district court 

explained, subsection 10(f) is inapplicable “because the 

NLRB’s action regulates representation rather than unfair labor 

practices.” AFL I, 466 F. Supp. 3d at 87. In other words, 

subsection 10(f) is not “ambiguous in any sense relevant,” 

Nat’l Auto. Dealers Ass’n, 670 F.3d at 270 (citation omitted), 

because—even accepting that “final order” also extends to 

rules—the provision applies to rules concerning unfair labor 

practices, not representation cases.

Second, the Board cannot dismiss subsection 10(f)’s 

reference to unfair labor practices as merely a “venue 

provision.” NLRB Principal Br. 29. The Board argues that, by 

including that reference, Congress did nothing more than 

“suppl[y] petitioners seeking review of unfair labor practice 

cases with an additional convenient forum” in the place where 

the unfair labor practice is alleged to have occurred. Id. The 

reference to unfair labor practices qualifies only the venue 

clause, the Board says, while the rest of the subsection 

“remains perfectly operative” as “a very plain, general grant of 

jurisdiction to circuit courts to review all ‘final orders of the 

Board granting or denying in whole or in part the relief 

sought’”—including final actions not involving unfair labor 

practices. Id. (quoting 29 U.S.C. § 160(f)). But, as the district 

court acknowledged, subsection 10(f)’s inclusion of a venueexpanding clause does not detract from textual and structural 

specifications that “the subject of a petition for review that is 

filed with the court of appeals under [subsection 10(f)] must be 

an NLRB action that pertains to unfair labor practices as 

opposed to any other topic that the agency might have acted to 

address.” AFL I, 466 F. Supp. 3d at 86 (emphasis in original). 

We are somewhat puzzled by Congress’s decision to 

provide for direct review in this court for unfair labor practice 

cases but not for representation matters, given that both types 
16

of cases are heard on agency records and would seem to benefit 

equally from quick resolution in our court. But we cannot 

rewrite the statute to resolve what seems a quirk. Thus, 

pursuant to 28 U.S.C. § 1331, the district court had jurisdiction 

over the AFL-CIO’s challenge to the 2019 Rule, and we 

exercise appellate jurisdiction under 28 U.S.C. § 1291 to 

review its judgment.

II. The APA’s Procedural Exception to Notice and 

Comment

The Board next challenges the district court’s ruling that

the APA’s procedural exception is inapplicable. The district 

court held that the Board violated the APA by promulgating 

each of the five challenged provisions of the 2019 Rule without 

engaging in notice and comment rulemaking. The Board

claims the five challenged provisions are exempt from the 

APA’s notice and comment requirements as rules of agency 

procedure under 5 U.S.C. § 553(b)(A).

In general, the APA requires agencies to publish notice of 

proposed rules in the Federal Register and to accept and 

consider comments on them from the public. See 5 U.S.C. 

§ 553(b)-(c). Those requirements are central to the APA’s 

“commitment to public notice and participation.” Batterton v. 

Marshall, 648 F.2d 694, 700 (D.C. Cir. 1980). Public 

participation helps to ensure that regulators are factually well 

informed and have the benefit of alternative solutions that 

commenters may suggest. See id. at 703-04. Rulemaking that 

acknowledges and responds to expressed needs and concerns 

of regulated parties and the affected public tends to be more 

readily accepted by winners and losers alike. See Guardian

Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 

F.2d 658, 662 (D.C. Cir. 1978).
17

In keeping with the statutory commitment to public 

participation in rulemaking, “the APA provides only limited 

exceptions to [its notice and comment] requirements.” 

Batterton, 648 F.2d at 700-01; see id. at 704. One such 

exception is for “rules of agency organization, procedure, or

practice.” 5 U.S.C. § 553(b)(A). We have used the term 

“procedural exception” as shorthand for that exemption, see, 

e.g., Pub. Citizen v. Dep’t of State, 276 F.3d 634, 640 (D.C. 

Cir. 2002) (quoting JEM Broad. Co. v. FCC, 22 F.3d 320, 328 

(D.C. Cir. 1994)), and we have referred to rules promulgated 

under it as “procedural rules,” see, e.g., Mendoza v. Perez, 754 

F.3d 1002, 1023 (D.C. Cir. 2014). But, as the text of the APA

makes clear, not all rules that might be categorized as 

procedural are exempted; the limited carveout is intended for

“internal house-keeping measures organizing agency 

activities.” Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045

(D.C. Cir. 1987) (quoting Batterton, 648 F.2d at 702). And its 

purpose is “to ensure that agencies retain latitude in organizing 

their internal operations.” Mendoza, 754 F.3d at 1023 (quoting 

Batterton, 648 F.2d at 707); accord Bowen, 834 F.2d at 1047.

We treat rules as procedural if they are “primarily directed 

toward improving the efficient and effective operations of an 

agency.” Mendoza, 754 F.3d at 1023 (quoting Batterton, 648 

F.2d at 702 n.34). “[T]he critical feature of a rule that satisfies 

the so-called procedural exception is that it covers agency 

actions that do not themselves alter the rights or interests of 

parties, although it may alter the manner in which the parties 

present themselves or their viewpoints to the agency.” James

V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 280 (D.C. 

Cir. 2000) (internal quotation marks omitted). Where a rule 

imposes “substantive burden[s],” Bowen, 834 F.2d at 1052, 

“encodes a substantive value judgment,” Pub. Citizen, 276 F.3d 

at 640 (quoting Bowen, 834 F.2d at 1047), “trenches on

substantial private rights [or] interests,” Mendoza, 754 F.3d at
18

1023 (quoting Batterton, 648 F.2d at 708), or otherwise 

“alter[s] the rights or interests of parties,” Nat’l Min. Ass’n v.

McCarthy, 758 F.3d 243, 250 (D.C. Cir. 2014) (quoting 

Glickman, 229 F.3d at 280), it is not procedural for purposes of 

the section 553 exemption. At bottom, the exception for 

“internal house-keeping measures,” Bowen, 834 F.2d at 1045, 

“must be narrowly construed,” Elec. Priv. Info. Ctr. v. U.S. 

Dep’t of Homeland Sec. (EPIC), 653 F.3d 1, 6 (D.C. Cir. 2011). 

These precedents represent this court’s current and consistent 

approach. Cf. Diss Op. 1, 5. 

The 2019 Rule governs how the Board supervises 

representation elections that determine whether a union will 

represent a group of employees. Many of the Board’s 

representation-election provisions, including provisions of the 

2019 Rule, govern or directly affect regulated parties—

employers, unions, and employees—and their substantive 

rights in relation to one another during representation elections.

That means much of the election conduct the Board regulates 

is not internal “agency action[].” Glickman, 229 F.3d at 280. 

In other words, the Board’s role in supervising elections does 

not convert all representation-election rules into rules of 

internal agency procedure. That said, some of the

representation-election provisions do regulate how the parties 

present disputes to the Board and the process for its decision. 

Thus, some but not all of the Board’s rules are “primarily 

directed toward improving the efficient and effective 

operations of [the] agency,” Mendoza, 754 F.3d at 1023 

(quoting Batterton, 648 F.2d at 702 n.34), or toward “the 

manner in which [regulated] parties present themselves or their 

viewpoints to the agency,” Glickman, 229 F.3d at 280 (quoting 

JEM Broad. Co., 22 F.3d at 326). 

We hold that three of the challenged provisions—those 

regarding employers’ production of voter lists, the delayed 
19

certification of election results, and who may serve as election 

observers—fall outside the scope of the procedural exception. 

As detailed below, the voter-list provision trenches on the 

union’s substantive interest in campaigning on equal footing 

with the employer. The provisions delaying certification cut 

back on an employer’s legal duty post-election to bargain in 

good faith, effectively eliminating that duty during the 

pendency of a request for review or, in the absence of such a 

request, until the time for seeking Board review has passed. 

And the election-observer provision establishes new 

substantive criteria for selecting observers that directly affect 

regulated parties’ interests in fair elections. Those provisions 

all substantively “alter the rights or interests of parties,”

Glickman, 229 F.3d at 280 (quoting JEM Broad. Co., 22 F.3d 

at 326), and therefore do not qualify as procedural rules for 

purposes of the section 553 exemption.

However, two of the challenged provisions—those 

regarding pre-election litigation of certain issues and a related 

change to election scheduling—are procedural rules within the 

meaning of section 553(b)(A). Both provisions are “primarily 

directed toward” internal agency operations, Mendoza, 754 

F.3d at 1023 (quoting Batterton, 648 F.2d at 702 n.34), insofar 

as they each govern the presumptive timing of when the 

Regional Director will resolve election-related disputes prior to 

an election. The Board therefore permissibly issued those 

provisions without notice and comment. We discuss each 

provision in turn, beginning with the substantive rules.

A. Substantive Rules

1. Voter list

Once a Regional Director issues a direction of election 

following a pre-election hearing, the employer must provide 

both the union and the Board with a list of the names, job 
20

details, and contact information for all eligible employeevoters. See 29 C.F.R. § 102.67(l); see also 2019 Rule, 84 Fed. 

Reg. at 69,531 & n.28. The Board does not seriously dispute 

that the primary purpose of that voter list is to facilitate the 

union’s campaign activities because, before receiving the list, 

the union generally does not have the same ability as the 

employer to contact employee-voters. Under the 2019 Rule, an 

employer has five business days from the issuance of the 

direction of election to provide the voter list. 84 Fed. Reg. at 

69,596-97 (codified at 29 C.F.R. § 102.67(l)). By contrast, the 

2014 Rule required an employer to provide it within two 

business days. 79 Fed. Reg. at 74,486. 

We conclude that the voter-list provision falls outside the 

section 553 exception for “rules of agency organization, 

procedure, or practice.” 5 U.S.C. § 553(b)(A). By changing

the timeline for transmission of the voter list, the provision

directly addresses the union’s ability to contact employees on 

equal terms with the employer. The voter-list provision 

thereby “alter[s]” regulated parties’ substantive “rights [and]

interests” in relation to each other. Glickman, 229 F.3d at 280 

(quoting JEM Broad. Co., 22 F.3d at 326). The Supreme Court 

has acknowledged that the Board’s requirement that employers 

share voter lists supports the NLRA-protected right of “fair and 

free choice of bargaining representatives,” in part by “allowing 

unions the right of access to employees that management 

already possesses.” NLRB v. Wyman-Gordon Co., 394 U.S. 

759, 767 (1969). By delaying the employer’s obligation to 

share with the union the employee-voters’ contact information, 

the provision “trenches on” the union’s substantive interest in

campaigning on equal footing with the employer. Mendoza, 

754 F.3d at 1023 (quoting Batterton, 648 F.2d at 708). It 

therefore does not qualify as procedural for purposes of the 

section 553 exception. See id.
21

The voter-list provision is also neither facially nor 

materially directed at “internal house-keeping.” Bowen, 834 

F.2d at 1045. It does not govern internal agency operations, 

nor is it principally directed at the “manner in which [regulated] 

parties present themselves or their viewpoints to the agency,”

Glickman, 229 F.3d at 280 (quoting JEM Broad. Co., 22 F.3d 

at 326). Instead, it primarily facilitates the transmission of 

information between parties, not from a party to the Board. See

Mendoza, 754 F.3d at 1024 (deeming substantive agency’s 

employer-certification procedures that set terms of employeremployee relationships). And it does so outside the context of 

any agency proceeding. The voter-list provision thus bears 

none of the hallmarks of a rule that would fall within the 

procedural exception.

The Board does not dispute the importance of voter lists to 

the union’s ability to campaign, nor the reality that the shift 

from two days to five within the twenty-day default preelection period extends the time when the employer has 

exclusive use of employee-voters’ contact information. 

Instead, Board counsel argues that the voter lists also help the 

Board conduct elections. The lists, for example, separately

identify the employees who are casting their votes subject to 

challenge, thus making it easier for the Board to identify them. 

But that seemingly slight convenience to the Board does not 

obviate the rule’s substantive character. Given that the union’s 

substantive interest in campaigning on equal footing with the 

employer is impaired until the employer produces the voter list, 

postponing that production necessarily burdens the union’s 

substantive interest. See Mendoza, 754 F.3d at 1023. And, 

tellingly, the Board did not even mention its asserted

convenience rationale in the rulemaking. 

The Board in its reply brief tries to brush off the delay as, 

in any event, “de minimis.” NLRB Response & Reply Br. 26. 
22

That rationale, too, is absent from the rulemaking; indeed, to 

the contrary, in support of the 2019 change the Board stressed 

the significance of the added time—for employers. See 2019 

Rule, 84 Fed. Reg at 69,531-32. And we are unpersuaded by 

the Board’s suggestion that extension of the time to set 

elections, discussed below, cancels out the delayed provision 

of the voter list to a union, somehow making the voter-list delay 

procedural. NLRB Principal Br. 61; 2019 Rule, 84 Fed. Reg.

at 69,532. The pre-election period is now presumptively set at 

twenty days but is often shorter. And, in any event, a three-day

head start on campaigning by employers before a union can 

even access employee contact information to reach potential 

voters is not erased by the addition of other days both parties 

might use to campaign. The asymmetry of three additional 

days of employers’ exclusive access to employee-voters’ 

contact information substantively burdens the union’s ability to 

campaign on equal footing.

Reference to pre-2014 practice likewise does nothing to 

dispel the AFL-CIO’s concerns about the disparity under the 

2019 Rule between unions’ and employers’ ability to 

campaign. Before the 2014 Rule, an employer had to provide 

the union with the voter list within seven calendar days from 

the issuance of the direction of election, which is generally 

equivalent to the five business days specified in the 2019 Rule. 

See 2019 Rule, 84 Fed. Reg. at 69,530-31. When the Board 

shortened the time to two days in the 2014 Rule, it pointed to 

widespread advances in recordkeeping, retrieval, and 

transmission technology since it first recognized unions’ right 

to voter lists in Excelsior Underwear, Inc., 156 NLRB 1236, 

1239-40 (1966), as obviating the basis for the original sevenday period. See 2014 Rule, 79 Fed. Reg. at 74,353. The 2014 

Rule preamble noted that under the prior rule—in addition to 

the two out of seven days treated as “lost to the weekend”—

employers operating under Excelsior before the advent of e-
23

mail and even express delivery services were allocated “3 more 

days . . . dedicated to service of the list by regular mail.” 79 

Fed. Reg. at 74,353. Excelsior’s own reasoning thus suggests 

that, without need to rely on the postal service, employers can 

provide the lists to unions within two days. To the extent the 

Board nonetheless wishes to revert to granting employers more 

time than that to provide the lists to unions, it must make such 

a substantive change through notice and comment procedures. 

Finally, the Board and our dissenting colleague liken 

delayed provision of the voter list to “changing the timeline for 

filings with an agency,” NLRB Principal Br. 61; see Diss. Op. 

10 (citing Lamoille Valley R.R. Co. v. Interstate Com. Comm’n, 

711 F.2d 295, 328 (D.C. Cir. 1983)), as a reason to treat it as a 

“rule[] of agency organization, procedure, or practice,” 

5 U.S.C. § 553(b)(A). But the voter-list provision does not set 

timelines for an agency’s internal processes, nor is it 

principally about submissions to the agency in support of such 

process. Our precedent examining “timetable[s] for asserting 

substantive rights” before an agency, Lamoille, 711 F.2d at 

328, is, thus, readily distinguished. 

The voter-list provision’s substantive character is instead 

established through the antecedent inquiry whether the Board’s 

rule “alter[s],” Glickman, 229 F.3d at 280, or otherwise 

“trenches on” a substantive right or interest, Mendoza, 754 F.3d 

at 1023—here, the union’s interest in campaigning on equal 

footing with the employer. Again, the provision primarily 

facilitates the transmission of information between parties to 

“allow[] unions the right of access to employees that 

management already possesses.” Wyman-Gordon, 394 U.S. at 

767. And it directly affects the parties’ primary interest in free 

and fair bargaining-unit elections. See id. Because it impairs 

a substantive interest, it is subject to the APA’s notice and 

comment requirements.
24

In sum, considering the “primary benefit” of the voter list 

to help the union communicate with employee-voters in the 

run-up to an election, NLRB Response & Reply Br. 27, and the 

lack of any significant basis to treat this provision as a rule of 

agency operations, we conclude the delayed voter-list 

provision determines parties’ rights or interests and is 

substantive. Accordingly, it should have been subjected to 

public notice and comment. See Mendoza, 754 F.3d at 1023. 

Because it was not, it is hereby vacated and remanded.

2. Delayed certification

If employees favoring the union win an election and the 

Board, or its Regional Director by delegation, certifies the 

union as the employees’ representative, the Act then requires 

the employer to bargain in good faith with the union. See 29 

U.S.C. § 158(a)(5); see also 2019 Rule, 84 Fed. Reg. at 69,554. 

Since the 2014 Rule went into effect, a party may file a request 

for Board review of the decision and direction of election even 

after the election has occurred. Parties may also file with the 

Regional Director objections to the conduct of the election and, 

if unsuccessful, may seek Board review of the Regional 

Director’s decision on those objections. See 2019 Rule, 84 

Fed. Reg. at 69,526, 69,553-54 (citing 29 C.F.R. § 102.67(c)). 

Under the 2019 Rule, a Regional Director will certify 

election results only after she has resolved any requests for 

review concerning the decision and direction of election or 

objections to the conduct of the election or, in the absence of 

such filings, after the time for seeking Board review has passed. 

See 84 Fed. Reg. at 69,597-99 (codified at 29 C.F.R. 

§ 102.69(b), (c)); see also id. at 69,526. The 2014 Rule, in 

contrast, provided that a Regional Director would certify 

election results without regard to whether a request for review 
25

was pending or still might be timely filed. See 79 Fed. Reg. at 

74,487; see also 2019 Rule, 84 Fed. Reg. at 69,526, 69,554. 

We hold that the provisions delaying certification of 

election results fall outside the APA’s procedural exception 

because they directly curtail the protective effect on employees 

of the rights and interests that flow from the election of a 

representative of their choosing. Delaying certification also 

suspends the attachment of an employer’s legal duty to bargain 

with a union that has won an election. Such a change “trenches 

on substantial private rights and interests,” necessitating notice 

and comment before it is made. Mendoza, 754 F.3d at 1023 

(citation omitted).

In its briefing, the AFL-CIO explains that delayed 

certification prevents unions from bargaining on behalf of 

employees—sometimes “for a significant period of time, even 

years.” AFL-CIO Principal & Response Br. 39. For 

employees who voted for a union expecting it would bargain 

for better terms and conditions of employment, delayed 

certification deprives them of a key benefit during that entire 

period. See id. Such deprivation may also erode employees’ 

support for a union that seems unable to deliver promptly on its 

promise. See id. At oral argument, the AFL-CIO elaborated 

on those points, referencing the challenge of “bargain[ing] a 

first contract,” Oral Arg. Tr. 37:3-4, and the difficulty “for a 

union to maintain [its] cohesion during that period” after it has 

won an election but not yet been able to bargain because 

certification is delayed, id. at 39:14-15. 

The AFL-CIO also emphasizes the importance of, first, the 

effect of delayed certification on an employer’s duty to bargain 

in good faith and, second, its effect on the duty not to make 

unilateral changes in terms and conditions of employment 

during the term of an existing collective bargaining agreement. 
26

See id. at 37:14-38:1. The Board argues that the effects of 

delay are remediable but addresses only the second of those 

two effects. It points out that the obligation to refrain from 

making any unilateral changes extends back to the date of the 

election, not certification, meaning that, if an employer makes 

unilateral changes but the union is ultimately certified, those 

changes can be challenged as unfair labor practices. See NLRB 

Principal Br. 63 & n.174; see also Oral Arg. Tr. 37:17-19. But 

an employer’s duty to bargain in good faith to reach agreement 

on terms and conditions of employment—a duty it owes even 

to employees not yet covered by any collective bargaining 

agreement—originates on the date of certification. See Oral 

Arg. Tr. 37:19-23; see also NLRB Principal Br. 63. Thus, 

unions and the employees they represent have no opportunity 

to later redress delayed certification’s impairment of their new 

right to bargain for terms of employment.

The Board and dissent do not contest those assertions. Nor 

do they deny that an employer’s duty to bargain arises at

certification, such that delaying certification eliminates

employees’ right to have their union promptly engage in 

collective bargaining on their behalf post-election. See NLRB 

Principal Br. 63 (distinguishing between “the duty to bargain 

in good faith” and “other duties, such as an employer’s 

obligation to refrain from making unilateral changes” that 

“extend back to the date of the election, not certification”); Oral 

Arg. Tr. 46:6-8 (Board counsel stating that, “outside of this 

specific bargaining obligation, virtually every other 

meaningful right that attaches to the union representation issue 

goes back to the election”); Diss. Op. 11-15. 

In characterizing the delayed-certification provisions as 

rules of agency procedure, the Board and dissent insist that, 

“[a]s a practical matter,” delayed certification has “de minimis 

impact on unions.” NLRB Principal Br. 63; see Diss. Op. 13. 
27

According to the Board, its “regional offices generally have not 

issued unfair labor practice complaints asserting that 

employers were not bargaining pursuant to certifications that 

are subject to pending requests for review.” NLRB Principal 

Br. 63 (citing D.A. 217 (2019 Rule, 84 Fed. Reg. at 69,555)); 

see also Diss. Op. 13. In effect, the Board and our dissenting 

colleague point to the Board’s own underenforcement of 

employers’ duty to bargain as a reason why a rule formally 

delaying certification does not affect employees’ substantive 

rights or interests.

But that practice does not negate the fact that the new 

provisions delaying certification shift the parties’ substantive 

burdens during the post-election period. As the Board 

explained in the 2019 Rule, the issuance of a certification under 

the prior rule despite the pendency of a request for review 

placed the risk on the employer to either refuse to bargain while 

awaiting the Board’s ruling and thereby commit an unfair labor 

practice if it loses on review, or to proceed to bargain while 

awaiting the Board’s ruling even though a win on review could 

prove bargaining to have been unnecessary. 84 Fed. Reg. at 

69,554-55. Materially diminishing employers’ incentives to 

bargain promptly upon certification curtails employees’ 

enjoyment of the legal rights that flow from a valid 

certification. Thus, the delayed-certification provisions are 

substantive rules that required notice and comment. 

The dissent further contends that we “fail[] to distinguish” 

our decisions in Lamoille, JEM Broadcasting, and Public 

Citizen—which, according to our dissenting colleague, each 

involved rules that altered the “timing for exercising 

substantive rights.” Diss. Op. 13-14 (citing Lamoille, 711 F.2d 

at 327; JEM Broad. Co., 22 F.3d at 322, 326-27; Pub. Citizen, 

276 F.3d at 637). But there is a material distinction. The rules 

at issue in Lamoille and JEM Broadcasting altered the 
28

“timetable for asserting substantive rights” before an agency—

not the timetable for exercising a substantive right itself. 

Lamoille, 711 F.2d at 328 (emphasis added). In other words, 

the rules at issue in those cases were primarily directed toward 

regulating the manner in which parties present their views or 

otherwise submit requests to the agency, as opposed to their 

exercise of substantive rights or interests outside of any 

agency-facing proceeding. In Lamoille, we examined an 

agency’s decision to expedite its schedule for considering 

merger applications and to truncate from 90 days to 60 days the 

period in which competing railroads could file responses to a 

proposed merger. Id. at 326-27. And in JEM Broadcasting, 

the rule at issue established a “fixed filing period” for license 

applications for particular commercial FM radio channels and 

set a 30-day limit on application amendments. 22 F.3d at 322, 

327-28. Both those rules set deadlines for filings seeking 

agency decisions. 

Similarly, the rule considered in Public Citizen affected 

the manner in which parties make requests to an agency, 

without altering their substantive rights or interests. See 276 

F.3d at 640-41. Specifically, the rule directed State 

Department personnel to search only for responsive documents 

that existed prior to the date of a FOIA request, thereby leaving

applicants to submit additional FOIA requests to obtain 

documents created after their request was filed. See id. at 637, 

640-41. Even as, broadly speaking, the certification delay 

challenged here, like each of those three cases, involves some 

form of “timing” change, none of the three prior cases involved 

a rule that suspended a party’s entitlement to a substantive right

or interest.

The provisions delaying certification do just that: They 

eliminate an employer’s legal duty to bargain with a union that 

has won an election during the time it takes the Board to resolve 
29

any requests for review or, in the absence of any such request, 

until the time for seeking Board review has elapsed. See 2019 

Rule, 84 Fed. Reg. at 69,597-99 (codified at 29 C.F.R. 

§ 102.69(b), (c)); see also id. at 69,526. That direct impact on 

an employer’s legal duty and its employees’ associated 

substantive right is what distinguishes the provisions delaying 

certification from the rules at issue in Lamoille, JEM 

Broadcasting, and Public Citizen—and excludes them from the 

shelter of the procedural exception. See, e.g., Glickman, 229 

F.3d at 280 (“[Procedural rules] do not themselves alter the 

rights or interests of parties.” (quoting JEM Broad. Co., 22 

F.3d at 326)).

Finally, the parties dispute whether delayed certification 

also affects a union’s right to recognitional picketing under 29 

U.S.C. § 158(b)(7). Compare, e.g., NLRB Principal Br. 64 

(maintaining that it “is simply wrong to assert that this rule 

affects a union’s right to picket for recognition, as the 30-day 

limitation on picketing contained in Section 8(b)(7) of the 

NLRA is eliminated by the filing of a petition” (footnotes 

omitted)), and NLRB Response & Reply Br. 29 (same), with, 

e.g., AFL-CIO Principal & Response Br. 37 n.12 (maintaining 

that “[s]uch picketing would be unlawful absent certification if 

continued for more than 30 days”). Because the effect of the 

delayed-certification provisions on the right to collective 

bargaining is sufficient to bring them outside the APA’s 

procedural exception, we need not resolve the uncertainty 

surrounding the time limits on recognitional picketing.

3. Election observers

Election observers play “the indisputably important role” 

of “representing their principals, challenging voters, generally 

monitoring the election process, and assisting the Board agent 

in the conduct of the election.” 2019 Rule, 84 Fed. Reg. at 
30

69,553. The Board has recognized that the presence of both 

employer-selected and union-selected observers at elections 

“help[s] to assure the parties and the employees that the 

election is being conducted fairly.” Id. at 69,552 (quoting 

Browning-Ferris Indus., 327 NLRB 704, 704 (1999)). The 

choice of election observers bears on the foundational interest 

in electoral legitimacy—both actual and perceived.

As the Board explained in the 2019 Rule, “[t]he practice 

of permitting the parties to be represented by observers at 

Board-conducted elections dates to the earliest days of the 

Act,” even though “the Act itself does not make any provision 

for observers to be present at an election.” Id. at 69,551. In its 

decisional law, the Board has long characterized the policy as 

a “privilege” or “courtesy” that it affords to parties, rather than 

a right or entitlement. See id. (citations omitted). But it matters 

not that the Board has so characterized its policy of allowing 

election observers, because “we examine how the rule affects 

not only the ‘rights’ of aggrieved parties, but their ‘interests’ as 

well.” Chamber of Com., 174 F.3d at 212 (citation omitted). 

The rule’s effect on regulated parties’ substantive interests in 

choosing their own election observers suffices to remove it 

from the category of procedural rules under the APA. See 

Mendoza, 754 F.3d at 1023 (explaining that “[p]rocedural rules 

do not themselves alter the rights or interests of parties” 

(internal quotation marks and citation omitted) (emphasis 

added)); accord Glickman, 229 F.3d at 280. 

The 2019 Rule provides that for manual, or in-person, 

elections,

any party may be represented by observers of its own 

selection; whenever possible, a party shall select a 

current member of the voting unit as its observer, and 

when no such individual is available, a party should 
31

select a current nonsupervisory employee as its 

observer. Selection of observers is also subject to 

such limitations as the Regional Director may 

prescribe.

84 Fed. Reg. at 69,597 (codified at 29 C.F.R. § 102.69(a)(5))

(emphases added). By comparison, the 2014 Rule stated, in 

relevant part, only that, “[w]hen the election is conducted 

manually, any party may be represented by observers of its own 

selection, subject to such limitations as the regional director 

may prescribe.” 79 Fed. Reg. at 74,486. 

The AFL-CIO argues that the 2019 Rule limits unions’ 

ability to select as observers former employees or union staff 

members who are less likely to be subject to intimidation and 

often more capable of “send[ing] a message to the employees 

who are voting that this is a fair election.” Oral Arg. Tr. 35:17-

36:2. The AFL-CIO further contends that the ability to select

a former employee or union staff member as an observer can 

be helpful when employees are “scared to sit . . . at the table . . . 

in front of the[ir] employer.” Id. at 35:17-22.

We conclude the election-observer provision falls outside 

the APA’s procedural exception because it “encodes a 

substantive value judgment” about the type of observers that 

best serve the policy goals animating the Board’s decision to 

permit non-Board observers, Pub. Citizen, 276 F.3d at 640, and 

so burdens regulated parties’ interests in fair elections. The 

Board has long recognized parties’ choice of observers as an 

important interest bearing on participants’ confidence in the 

fair conduct of the elections. The Board itself has recognized 

that the standards governing who may serve as an election 

observer can directly affect the fairness and outcome of 

elections, because employee-voters may be “intimidate[d]” by 

the presence of certain types of observers, such as employees 
32

with “disciplinary power.” 2019 Rule, 84 Fed. Reg. at 69,551 

n.109 (quoting United States Gypsum Co., 81 NLRB 197 

(1949)); see also id. at 69,552. 

The Board candidly admitted that the core of the provision 

in question—confining parties to select a current member of 

the voting unit as their observer whenever possible—“is a new 

innovation,” not a codification of any principle previously 

developed in the Board’s precedent on observers. Id. at 69,553. 

It therefore imposes a “new substantive burden[],” EPIC, 653 

F.3d at 5 (citation omitted), on the parties by “alter[ing] the 

standards imposed on” them when choosing observers, 

Mendoza, 754 F.3d at 1024 (emphasis omitted). That 

substantive character suffices to remove the provision from the 

agency-procedure exemption from the notice and comment

requirement.

Our dissenting colleague does not dispute that the electionobserver provision “alter[s] the substantive criteria” by which 

parties select observers. Glickman, 229 F.3d at 281. But she 

claims the provision “does not encode a substantive value 

judgment,” because “[t]he point [of the provision] is 

transparency in an election procedure under the control of the 

Board.” Diss. Op. 16. Transparency benefits do not negate the 

provision’s substantive value judgment regarding the type of 

observers best suited to achieve the Board’s policy goals. See, 

e.g., 2019 Rule, 84 Fed. Reg. at 69,552. More fundamentally, 

the Board’s role in supervising representation elections does 

not convert every provision regarding election process into a 

rule of agency procedure. Parties’ interests in choosing 

representatives to observe elections and help ensure that 

employees may vote free from intimidation are substantive 

interests in the conduct of choosing or declining union

representation. 
33

Nothing in Guardian requires us to treat the electionobserver provision here as a matter of agency procedure. Cf.

Diss. Op. 16-17 (citing Guardian, 589 F.2d at 665). The rule

at issue in Guardian concerned mandatory, annual audits of 

federally insured savings and loan institutions pursuant to an 

unchallenged provision that “specifie[d] in considerable detail 

criteria that must be met before an audit or an auditor will be 

satisfactory to” the Federal Savings & Loan Insurance

Corporation (FSLIC). 589 F.2d at 661. Guardian challenged

the part of FSLIC’s rule in which the agency “exercise[d] an 

option” provided by a preexisting rule “to require that audits be 

performed by accountants from the private sector,” rather than 

as incidental to other examinations by FSLIC staff. Id. at 665. 

We described the agency’s decision that its examiners would 

no longer conduct those audits as “unquestionably one of 

agency procedure.” Id. The Board’s election-observer 

provision, unlike the FSLIC’s rule, is not the “necessary 

consequence of,” id.—or even arguably related to—a decision 

about the duties of NLRB staff. And election observers, unlike 

auditors, play a role in representing unions and employers to 

third parties—namely, employee-voters. See 2019 Rule, 84 

Fed. Reg. at 69,553. 

In short, because the election-observer provision imposes 

new “substantive burden[s]” on the parties’ interests in fair 

elections, employee-voters’ perceptions of both employer and 

union, and voters’ ultimate confidence in the elections, it falls 

outside the APA’s exception for “procedural” rules. EPIC, 653 

F.3d at 5; accord Mendoza, 754 F.3d at 1023-24.

B. Procedural Rules

We turn next to the two remaining challenged provisions

of the 2019 Rule: those regarding pre-election litigation of 

certain issues and a related adjustment to the default rule for
34

election scheduling. Unlike the other challenged provisions, 

these two are principally “internal house-keeping” rules,

Bowen, 834 F.2d at 1045; they are both “primarily directed 

toward improving the efficient and effective operations of [the]

agency,” Mendoza, 754 F.3d at 1023 (quoting Batterton, 648 

F.2d at 702 n.34), and “impose[] no new substantive 

obligations” or burdens upon the parties’ rights and interests, 

EPIC, 653 F.3d at 6. We therefore hold that these two

provisions are procedural rules exempt from notice and 

comment under section 553.

1. Pre-election litigation of voter eligibility, unit 

scope, and supervisory status

As referenced above, employers and unions sometimes 

disagree over which employees may be appropriately 

encompassed within a bargaining unit. Such disputes affect 

who is eligible to vote in an election: only votes cast by 

employees who would be within the proposed unit count 

toward determining the outcome of the election. For example, 

parties may disagree about whether an employee is a supervisor 

and accordingly excluded from the NLRA’s protections, 

outside any proposed bargaining unit, and ineligible to vote. In 

most cases, the parties resolve such disputes through election 

agreements. But when the parties do not settle those issues 

themselves, it falls to the NLRB to decide them.

Under the 2019 Rule, “[d]isputes concerning unit scope, 

voter eligibility and supervisory status will normally be 

litigated and resolved by the Regional Director before an 

election is directed.” 84 Fed. Reg. at 69,593 (codified at 29 

C.F.R. § 102.64(a)). That presumption replaced the 2014 

Rule’s provision that “[d]isputes concerning individuals’ 

eligibility to vote or inclusion in an appropriate unit ordinarily 

need not be litigated or resolved before an election is 
35

conducted.” 79 Fed. Reg. at 74,482. Under the old rule, 

individuals whose disputed eligibility was undecided at the 

time of the election would cast their votes subject to challenge. 

After the election, the eligibility or inclusion disputes would be

resolved as necessary, such as when the votes of the contested 

individuals could affect the outcome of the election or, if the 

pro-union votes prevailed in any event, to determine whether 

contested individuals were appropriately treated as part of the 

bargaining unit.

The AFL-CIO argues that this provision of the 2019 Rule

falls outside the APA’s procedural exception because it “vests 

parties with an affirmative, substantive right, most often 

exercised by the employer, to obtain a pre-election advisory 

opinion regarding the status of individual employees.” AFLCIO Principal & Response Br. 28-29. It further contends the 

provision is substantive because it builds in a source of 

unjustified delay by “add[ing] the prerequisite of resolving 

these individual eligibility issues before a petitioning party may 

obtain a Board election.” Id. at 28. It asserts the prior practice 

of deferring resolution of eligibility and scope questions until 

after an election was more efficient where the margin of 

election victory was sufficient to moot the ballot challenges. 

The Board responds that the provision merely changes 

“when those issues are presented to, and decided by, the 

Board,” NLRB Principal Br. 55 (emphasis in original), and,

even then, only “in the small number of contested election 

cases”—around ten percent—“that the Board hears per year,” 

id. at 57. At least some of the contested election cases are too

close to moot ballot disputes. And even when a union’s win is 

decisive, disputes affecting individuals’ inclusion or not in the 

unit remain live. See NLRB Response & Reply Br. 19-20.
36

The provision calling on the Regional Director typically to 

decide issues of voter eligibility and unit scope before rather 

than after the election is procedural, not substantive. It is 

directed at “agency actions that do not themselves alter the 

rights or interests of parties.” Glickman, 229 F.3d at 280 

(quoting JEM Broad. Co., 22 F.3d at 326). And it does not 

appear from the record that reversing the presumptive preelection timing of those decisions “substantively affects” 

regulated parties to a “degree sufficient to implicate the policy 

interests animating notice-and-comment rulemaking.” EPIC, 

653 F.3d at 6. As the Board explained in the 2019 Rule, the 

provision marks a return to the pre-2014 approach. See 84 Fed. 

Reg. at 69,525. 

In holding that the provision falls outside the procedural 

exception, the district court expressed concern that reverting to 

a process associated with delays “will hinder the employees’ 

prospects of mobilizing a sufficient number of peers to 

unionize the workplace,” AFL I, 466 F. Supp. 3d at 91, but the 

AFL-CIO itself does not so argue. Indeed, the AFL-CIO’s own 

expert concluded that the 2014 Rule, successfully shortening 

case times, did not affect rates of unionization. D.A. 103. The 

expert similarly found that statistics regarding frequency and 

length of hearings were unaffected by the shift in their 

presumptive timing: “Neither the probability of a case’s 

having a pre-election hearing nor the average length of those 

hearings changed, over time or in the wake of the [2014] rule 

change.” D.A. 111.

Contrary to the AFL-CIO’s assertion, the provision calling 

on Regional Directors to decide eligibility disputes before an 

election cannot fairly be said to create an “affirmative, 

substantive right” in any party to insist that they do so. AFLCIO Principal & Response Br. 28-29. By its terms, the 

provision sets only the sequence Regional Directors 
37

“normally” should follow. 2019 Rule, 84 Fed. Reg. at 69,540. 

It neither prevents parties from agreeing to defer resolutions 

until after an election, nor prevents Regional Directors from 

deciding over objection to defer decision of eligibility disputes 

in appropriate cases. See id. at 69,541-42 (noting that rule 

establishes only when Regional Directors “normally” will 

decide, and that the new provision is “not imposing a 

requirement that, absent agreement of the parties to the 

contrary, all eligibility issues must be resolved prior to an 

election” but preserves “the discretion of the regional director 

to defer eligibility and inclusion issues”). 

The record, then, does not bear out the contention that the 

parties’ substantive rights or interests are affected by returning 

to the pre-2014 default sequence for the Regional Director’s 

resolution of issues of voter eligibility, unit scope, and 

supervisory status. The change principally affects the manner 

in which employers and unions present themselves and their 

views to the Board and in which it decides their disputes, rather 

than the parties’ substantive rights or interests. See Lamoille, 

711 F.2d at 328; Glickman, 229 F.3d at 280-81; JEM Broad. 

Co., 22 F.3d at 327-28; cf. Mendoza, 754 F.3d at 1023-24. 

Specifically, for elections not conducted pursuant to election 

agreements, the provision sets the sequence the NLRB expects 

its Regional Directors ordinarily to follow in deciding disputed 

questions of eligibility and scope. 

We accordingly hold that the provision regarding preelection litigation is a procedural rule validly promulgated 

without prior notice and comment.

2. Election scheduling

Following the pre-election hearing that occurs in those 

cases not conducted under an election agreement, the Regional 

Director either dismisses the petition calling for an election if 
38

no question of representation exists or, if she identifies such a 

question, issues a decision and direction of election. The 

direction of election often includes details like the date of the 

election.

The 2019 Rule builds in a presumptive waiting period of 

twenty business days immediately following the direction of 

election to allow the Board to rule on disputes between the 

parties. It states that the Regional Director

shall schedule the election for the earliest date 

practicable, but unless a waiver is filed, the Regional 

Director will normally not schedule an election

before the 20th business day after the date of the 

direction of election, to permit the Board to rule on 

any request for review which may be filed.

2019 Rule, 84 Fed. Reg. at 69,595 (codified at 29 C.F.R. § 

102.67(b)). By contrast, the 2014 Rule simply provided that 

“[t]he regional director shall schedule the election for the 

earliest date practicable.” 79 Fed. Reg. at 74,485. In the 2019 

Rule, the Board acknowledged that the new provision will 

generally result in about four weeks between the direction of 

election and the election itself, as compared to about two weeks 

under the 2014 Rule. See 84 Fed. Reg. at 69,546. 

The AFL-CIO argues that the 2019 Rule’s electionscheduling provision is substantive because it “deprives a 

petitioning party of its existing right to a prompt election,” 

AFL-CIO Principal & Response Br. 31, and affects “how much 

time parties have to communicate with employees prior to the 

election,” id. at 32 (internal quotation marks and citation 

omitted). The Board responds that we have previously held 

that “changes to agency timelines are procedural, not 

substantive,” NLRB Principal Br. 58-59 (citing Lamoille, 711 

F.2d at 328), and that the provision addresses “the internal 
39

workings of the agency by, among other effects, giving the 

Board more time to rule on requests for review prior to 

elections,” id. at 60.

We hold that the election-scheduling provision is 

procedural. Like the rule at issue in Lamoille, it comprises part 

of the “timetable for [regulated entities to] assert[] substantive 

rights,” 711 F.2d at 328, namely, particular employees’ right to 

vote for or against a union to represent them as a defined bloc. 

And, as in Lamoille, the relevant inquiry is whether the 

timetable unduly constrains the rule challenger’s opportunity 

to state its case. See id. Whereas in Lamoille, the “proper 

question” was “whether the time allotted [was] so short as to 

foreclose effective opportunity to make one’s case on the 

merits,” id., here, we might in fairness reverse the question: 

whether the time allotted between the direction of election and 

the election itself is so long as to impede a union’s opportunity 

to make its case on the merits to employee-voters. Indeed, the 

longer a case drags on, the more risk that support for a union 

(or other impetus to call for an election in the first place) will 

dissipate. Cf. Oral Arg. Tr. 36:16-37:8, 39:10-18 (counsel for 

the AFL-CIO explaining that delays in bringing a 

representation case to resolution can diminish employees’ 

support for a union). 

The time allotted by the election-scheduling provision is 

not so long as to impede the union’s opportunity to make its 

case to employee-voters. Like the provision regarding preelection litigation of certain issues, the election-scheduling 

provision is a return to the pre-2014 rules for representation 

cases. See 2019 Rule, 84 Fed. Reg. at 69,525. The pre-2014 

rules provided for twenty-five to thirty calendar days between 

the direction of election and the election itself, which is 

functionally equivalent to the twenty business days specified in 

the 2019 Rule. See id. at 69,545. And the evidence in the 
40

record shows that this timing change did not affect the rate at 

which unions or employers prevailed. See id. at 69,528; D.A. 

103.

Finally, the election-scheduling provision is directed 

toward improving the efficient and effective operations of the 

Board, which generally indicates a procedural, rather than 

substantive, rule. See Mendoza, 754 F.3d at 1023. The 

provision itself specifies that the twenty-business-day period is 

“to permit the Board to rule on any request for review which 

may be filed,” 2019 Rule, 84 Fed. Reg. at 69,595 (codified at 

29 C.F.R. § 102.67(b)), reflecting the agency’s preferred 

approach to “internal house-keeping.” Bowen, 834 F.2d at

1045. As the Board elaborated in the Rule, it gives the Board 

“a realistic opportunity” to “decid[e] issues prior to the election 

. . . [and] contribute[s] to a more efficient resolution of the 

question of representation by clearing away issues that may 

otherwise linger on after the election.” 2019 Rule, 84 Fed. Reg.

at 69,546. 

The precise timing of an election does not itself alter any 

extant legal duty; it presumptively delays the process for 

determining whether the employer’s legal duty to bargain 

(among other duties) will even arise. That distinguishes the 

Board’s election timing provision from the provision delaying 

certification of election results. Only the latter directly alters 

an employer’s legal duty and its employees’ associated 

substantive right during a certain period post-election. See

supra Section II.A.2. We accordingly conclude that our 

precedent places the election-timing provision on the 

procedural side of the section 553 procedural/substantive 

dividing line even as the delayed-certification provision is 

properly treated as substantive. See Mendoza, 754 F.3d at 

1023-24.
41

In sum, we hold that the Board acted permissibly in 

treating the election-scheduling provision as a procedural rule 

and promulgating it without notice and comment.

III. Arbitrary-and-Capricious Challenge to the 2019 Rule 

as a Whole

In its cross-appeal, the AFL-CIO claims that the 2019 Rule 

as a whole is arbitrary and capricious in violation of the APA. 

It emphasizes the “uncontroverted evidence” that the 2014 

Rule significantly reduced the overall duration of 

representation cases. AFL-CIO Principal & Response Br. 44; 

see also id. at 47. And it argues that the Board’s rationale that 

the 2019 Rule promotes finality is insupportable given that the 

Rule “extend[s] multiple deadlines, permit[s] more litigation, 

and delay[s] the attachment of legal duties.” Id. at 44. The 

AFL-CIO accuses the Board of ignoring data on the 2014 

Rule’s effect on case timelines, id. at 47-48, and criticizes the 

Board for “not even cit[ing] anecdotal evidence of problems 

with the deadlines” established by the earlier rule, id. at 51.

But, as the district court explained, “the record establishes 

that the Board exercised its discretion with relevant 

information in hand and with eyes wide open concerning the 

impact of the significant changes that it was adopting.” AFL 

II, 471 F. Supp. 3d at 241 (citing Am. Hosp. Ass’n v. NLRB, 

499 U.S. 606, 618-19 (1991)). Thus, the 2019 Rule as a whole 

passes muster under the APA.

In the extensive preamble to the 2019 Rule, running more 

than thirty pages, the Board repeatedly acknowledges that its 

changes will result in longer waits before elections relative to 

the 2014 Rule. See, e.g., 2019 Rule, 84 Fed. Reg. at 69,528, 

69,546, 69,557. And the Board expressly notes the evidence 

that the AFL-CIO says it ignored—“that the median time 

between the filing of a petition and the election has been 
42

significantly reduced since the 2014 amendments became 

effective.” Id. at 69,528; see also id. at 69,528 n.15 (citing 

statistics on case lengths). The Board nonetheless concludes 

that the 2014 Rule’s “gains in speed have come at the expense 

of other relevant interests,” like transparency and uniformity, 

and finality and certainty, id. at 69,528-29, and, in the 2019 

Rule, made “non-statistical policy choices” about how to 

further those other interests, id. at 69,557. 

The Board gives a rational account of how the 2019 Rule 

advances interests apart from speed. For example, the Board 

adequately explains that the election-scheduling provision—

which supplements the “earliest date practicable” language 

with a default minimum period of twenty business days—

promotes transparency and uniformity by making the timing of 

elections more predictable for parties. See id. at 69,546. It also 

explains that the provision regarding pre-election litigation of 

voter eligibility, unit scope, and supervisory status could 

provide employee-voters with more complete information 

about “who they are voting to join in collective bargaining.” 

Id. at 69,541. 

On finality, the district court aptly distinguished between 

the different forms that interest might take, and how the Board 

might value one form over another. On the one hand is the kind 

of finality that “requires all disputes about the outcome of an 

election to be resolved prior to certification,” which prizes the 

“definitiveness” of certification. AFL II, 471 F. Supp. 3d at 

242. On the other hand is “finality in terms of efficient election 

results that facilitate relatively rapid certification,” but with the 

potential that such a certification could be undone if the Board 

ultimately granted a request for review. Id. 

In the 2019 Rule, the Board makes clear its preference for 

the former kind of finality. Early on, the Board asserts 
43

generally that “[t]he mere fact that elections are taking place 

quickly does not necessarily mean that this speed is promoting 

finality or the most efficient resolution of the question of 

representation.” 2019 Rule, 84 Fed. Reg. at 69,529 (emphasis 

added). Later, in the context of the provision calling for preelection resolution of issues like unit scope, it explains that “the 

Board should strive to maximize the opportunity for an election 

vote to provide immediate finality, subject only to the filing of 

objections to conduct allegedly affecting the results,” which 

necessarily cannot be litigated before an election. Id. at 69,540. 

Regardless of whether one agrees with those explanations as a 

policy matter, we cannot say they are irrational.

The Board’s weighing of competing interests—including 

variations on the same interest—in the 2019 Rule was 

reasonable and sufficiently explained. The Rule therefore is 

not arbitrary and capricious as a whole.

IV. The 2019 Rule’s Impoundment Provision

Under the 2019 Rule, if a party files a request for review 

of a direction of election within ten business days of its 

issuance by the Regional Director, and the Board either grants 

the request or does not rule on it before the election occurs, then 

“all ballots shall be impounded and remain unopened pending 

such ruling or decision.” 84 Fed. Reg. at 69,595 (codified at 

29 C.F.R. § 102.67(c)). The AFL-CIO claims that the 

impoundment provision violates the APA in two respects. 

First, it argues that the provision is arbitrary and capricious, in 

part because it “forc[es] the Board to automatically decide any 

issue timely raised in a request for review without evaluating 

whether the particular issue is likely to be rendered moot by the 

election results.” AFL-CIO Principal & Response Br. 54. 

Second, the AFL-CIO argues that the provision is contrary to 

law, namely, section 3(b) of the Act. 
44

Section 3(b) of the Act allows the Board to delegate certain 

powers regarding the resolution of representation cases to 

Regional Directors. As relevant here, it provides that “the 

Board may review any action of a regional director delegated 

to him under this paragraph, but such a review shall not, unless 

specifically ordered by the Board, operate as a stay of any 

action taken by the regional director.” 29 U.S.C. § 153(b). 

Because we hold that the impoundment provision is contrary to 

law as a prohibited stay of action by Regional Directors and 

vacate it on that basis, we need not address the AFL-CIO’s 

claim that it is arbitrary and capricious.

The impoundment provision “operate[s] as a stay” for 

purposes of section 3(b). Id. As the Board concedes, 

impoundment “postpones the count[ing]” of ballots. 2019 

Rule, 84 Fed. Reg. at 69,548. And the counting of ballots is an 

“action taken by the regional director” as part of her delegated 

authority under section 3(b). 29 U.S.C. § 153(b). The 

impoundment provision thus falls squarely within the meaning 

of a “stay” under section 3(b).

The Board strains against the statute’s plain text. It argues 

that section 3(b) speaks only to “a stay of any action taken by 

the regional director,” NLRB Response & Reply Br. 59

(citation omitted), and that, because impounding ballots 

happens “before the Regional Director issues a certification, 

that is, before an action has been ‘taken,’” it is not a “stay” 

within the meaning of that section, id. at 61. Alternatively, the 

Board argues that, even if section 3(b) were ambiguous as to 

whether impounding ballots is “a stay of any action taken”—

because “taken” might refer only to past action or both past and 

future action—its interpretation of 3(b) as referring only to past 

action is reasonable. See id. at 63-68.
45

The Board’s arguments miss the mark. Section 3(b) is 

clear: “a stay of any action taken” applies to past, present, and 

future actions taken by the Regional Director. As the AFLCIO explains, the word “taken” in section 3(b) is a “participial 

adjective modifying the noun ‘action,’” not part of a “past tense 

verb phrase.” AFL-CIO Principal & Response Br. 59. Used in 

that way, the word “taken” is timeless; it refers to past, present, 

and future action. See Henson v. Santander Consumer USA 

Inc., 137 S. Ct. 1718, 1722 (2017); see also Diss. Op. 19 n.5. 

Accordingly, impoundment “operates as a stay” under section 

3(b) regardless of whether the impoundment occurs before the 

Regional Director issues a certification. 29 U.S.C. § 153(b).

Even if section 3(b) were ambiguous (it is not), the Board’s 

interpretation would not carry the day. In reviewing agency 

action, “we look only to what the agency said at the time of the 

rulemaking—not to its lawyers’ post-hoc rationalizations.” 

Good Fortune Shipping SA v. Comm’r, 897 F.3d 256, 263 

(D.C. Cir. 2018) (internal quotation marks and citation 

omitted). The Board’s explanation in the preamble does not so 

much as mention the word “taken.” See 2019 Rule, 84 Fed. 

Reg. at 69,547-49. And the cursory explanation that the Board 

did provide does not do the trick. In attempting to reconcile 

the impoundment provision with section 3(b) of the Act, the 

Board said that “impounding the ballots is not a ‘stay’ of the 

regional director’s action” because “impoundment only 

postpones the count.” Id. at 69,548. But insisting that 

something is not a “stay” because it is actually a 

“postpone[ment]” is no explanation at all. The Board’s defense 

of its impoundment provision, thus, fails to persuade.

Our dissenting colleague’s alternative defense of the 

Board’s impoundment provision fares similarly. She agrees 

with our conclusion that the provision operates as a stay, see

Diss. Op. 18-19, but contends that “the Board has specifically 
46

ordered a stay” via “rulemaking,” making it permissible under 

section 3(b), id. at 20. Tellingly, the Board did not itself rely 

on the “specifically ordered” clause in section 3(b) as an 

affirmative argument. See NLRB Response & Reply Br. 58-

69. 

The dissent’s reading of that clause is not viable. Recall 

that section 3(b) provides:

[U]pon the filing of a request therefor with the Board

by any interested person, the Board may review any 

action of a regional director delegated to him under 

this paragraph, but such a review shall not, unless 

specifically ordered by the Board, operate as a stay 

of any action taken by the regional director.

29 U.S.C. § 153(b). The statutory text makes plain that 

“specifically ordered by the Board” means ordered in a given

case, not ordered as a general matter by rulemaking. Id. 

Indeed, the phrase “unless specifically ordered by the Board” 

modifies the circumstances under which “such a review shall 

not . . . operate as a stay of any action taken by the regional 

director.” Id. (emphasis added). “[S]uch a review” refers to 

the Board’s review in a particular case; it is “a review” that 

arose “upon the filing of a request therefor with the Board.” Id. 

In sum, section 3(b) permits the Board’s “review” in a 

particular case to “operate as a stay of any action taken by the 

regional director” only when “specifically ordered by the 

Board” in that case. Id. Section 3(b)’s “specifically ordered” 

clause does not disturb our conclusion that the impoundment 

provision is contrary to law.

* * *

For the foregoing reasons, we affirm the district court’s 

rulings that it had jurisdiction over the AFL-CIO’s challenge to 
47 

the 2019 Rule, and that the Rule is not arbitrary and capricious 

as a whole. However, we reverse in part the district court’s 

ruling on the APA’s procedural exception, leaving the court’s 

vacatur in place only as to the provisions regarding an 

employer’s production of voter lists, delayed certification, and 

election observers. Those three provisions must remain 

vacated unless and until the Board repromulgates them with 

notice and comment. We also reverse the district court’s ruling 

that the impoundment provision is not contrary to law and thus 

vacate that provision as well. 

Because we reverse in part the district court’s ruling on the 

APA’s procedural exception but affirm its ruling that the Rule 

is not arbitrary and capricious as a whole, we remand for the 

court to consider the AFL-CIO’s remaining claims—the 

undecided claims in Counts Three and Four—in the first 

instance. 

So ordered. 
RAO,Circuit Judge, concurring in the judgment in part and 

dissenting in part: The National Labor Relations Board has 

adjusted the rules for representation elections more than three 

dozen times without notice and comment since 1961. The 2019

Rule at issue here is the latest iteration. It reverses several 2014 

changes to details of election administration. Applying an

obsolete legal standard, the majority holds for the first time that 

some of the Rule’s provisions are substantive and therefore do 

not fall under the Administrative Procedure Act’s (APA) 

exception to notice and comment for procedural rules. See 5 

U.S.C. § 553(b)(A). Under the correct standard, however, these 

are classic procedural rules and notice and comment was not

necessary. In promulgating them, the Board balanced one 

procedural interest (speed) against others (like finality and 

transparency). I would also uphold an undisputedly procedural

provision that requires ballots to be impounded pending review

of an election by the Board because the provision is consistent 

with statutory requirements and reasonably explained.

The Board has discretion to direct and manage disputes 

over representation, and it has properly issued procedural rules 

that do so. Because I would uphold the 2019 Rule in its entirety,

I respectfully dissent.

I.

The Board oversees the formation of collective bargaining 

relationships between private companies and their employees. 

National Labor Relations Act of 1935, Pub. L. No. 74-198, 49 

Stat. 449 (codified as amended at 29 U.S.C. §§ 151–69). When 

employees seek to unionize, the Board is responsible for 

directing elections and certifying the results. 29 U.S.C. 

§ 159(c). As part of this responsibility, the Board has long 

prescribed and regularly updated rules for election 

administration. The majority summarizes this history but 

glosses over two important points. First, the overwhelming and 
2

previously unchallenged practice of the Board has been to issue 

rules of election administration without notice and comment. 

Second, these rules have consistently balanced procedural 

interests, particularly the speed, finality, transparency, and 

uniformity of elections. The 2019 Rule is no different.

The Board first promulgated a set of rules to govern 

elections in 1961. The rules revamped the entire election 

process, delegated authority to regional directors to resolve 

pre-election disputes and run elections, and significantly 

decreased the time it took to conduct elections. RepresentationCase Procedures, Notice of Proposed Rulemaking, 79 Fed. 

Reg. 7,318, 7,320 (Feb. 6, 2014) (recounting history). The 

Board nevertheless issued the rules without notice and 

comment. In the following decades, the Board modified its

election rules more than three dozen times, always without 

notice and comment. Representation-Case Procedures, Final 

Rule, 79 Fed. Reg. 74,308, 74,310 (Dec. 15, 2014). When, in 

2011 and 2014, the Board broke with this practice and used

notice and comment to modify its election rules, it emphasized 

that notice and comment was unnecessary. Id. at 74,311; 

Representation-Case Procedures, Final Rule, 76 Fed. Reg. 

80,138, 80,148 (Dec. 22, 2011). The Board promulgated the 

2019 Rule at issue here without notice and comment, 

explaining that the Rule was procedural and the additional 

process unnecessary. Representation–Case Procedures, Final 

Rule, 84 Fed. Reg. 69,524, 69,528 (Dec. 18, 2019).

The Board has correctly classified election rules as 

procedural for over 60 years.

1 Adjustments to the rules have 

been aimed at archetypal procedural values, such as ensuring

1

If the election rules were properly deemed substantive, a 

longstanding practice of the Board would not insulate them from the 

requirements of notice and comment rulemaking. 
3

votes are “recorded accurately, efficiently and speedily.” See 

NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946) (describing 

the Board’s goals for its election rules and regulations). The 

oscillation over time can be explained by the fact that some 

values compete and experience may cause the Board to strike 

a different balance. For example, the Board has long worked to

speed up the election process, including in the 2014 Rule. 84 

Fed. Reg. at 69,528. But the Board has also sought to improve 

the transparency, uniformity, and finality of elections. Id. at 

69,529.

In 2019, the Board made some modifications to promote 

finality and predictability, explaining the “gains in speed” over 

the years had “come at the expense of other relevant interests.”

Id. at 69,528–29. The Board acknowledged the changes might 

come “at the cost of some promptness,” but concluded the 

benefits outweighed the costs. Id. at 69,548. “[T]he mere fact 

that an election is conducted promptly does not mean that the

question of representation has been resolved.” Id. at 69,545. 

The Board has an interest in promoting finality and certainty to 

employers and unions, ensuring that election challenges do not 

“linger on ... for weeks, months, or even years.” Id. at 69,529. 

As it has for more than six decades, the Board considered and 

traded off various procedural values in its latest modification 

to the rules governing election administration.

II.

The AFL-CIO argues that the 2019 Rule is substantive and 

thus the Board was required to follow notice and comment 

procedures. When an agency promulgates a rule, usually it 

must publish notice in the Federal Register and submit the rule 

to the public for comment. 5 U.S.C. § 553(b)–(c). But some 

rules are exempt, including “rules of agency organization, 

procedure, or practice.” Id. § 553(b)(A). This case requires us
4

to distinguish “substantive” rules on the one hand, which are 

subject to notice and comment, from “procedural” rules on the 

other, which are not. While the line between substantive and 

procedural rules is sometimes difficult to discern, following the

principles articulated by our decisions over the last few 

decades, the 2019 Rule is procedural and therefore was 

properly promulgated without notice and comment.

To determine whether a rule is procedural or substantive, 

we ask whether it “encodes a substantive value judgment.” 

Pub. Citizen v. Dep’t of State, 276 F.3d 634, 640 (D.C. Cir. 

2002) (quoting Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1047 

(D.C. Cir. 1987)). In particular, a substantive rule encodes a 

value judgment about primary conduct whereas a procedural 

rule governs secondary conduct. See Air Transp. Ass’n of Am. 

v. Dep’t of Transp., 900 F.2d 369, 383 (D.C. Cir. 1990) 

(Silberman, J., dissenting), remanded, 498 U.S. 1077 (1991), 

vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991); JEM Broad. 

Co. v. FCC, 22 F.3d 320, 328 (D.C. Cir. 1994) (disavowing the 

Air Transport majority’s reasoning and noting the majority is

no longer binding precedent); cf. Landgraf v. USI Film Prods., 

511 U.S. 244, 275 (1994) (“[R]ules of procedure regulate 

secondary rather than primary conduct.”). For example, 

“judgment[s] about what mechanics and processes are most 

efficient” are procedural. JEM Broad., 22 F.3d at 328. A

procedural rule does not become substantive solely because the 

parties prefer one type of procedure over another. “All

decisions, to the extent that they derive from reasons, 

necessarily are based on the value judgment that the chosen 

option is better, in some relevant way, than its alternatives.”

James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282 

(D.C. Cir. 2000).

The mine run of facially procedural rules will in fact be 

procedural; however, even a rule that is facially procedural may 
5

be deemed substantive if the effects are so “sufficiently grave” 

or create such an “extreme procedural hurdle[]” that the 

substance swallows the procedure. See Lamoille Valley R.R. v. 

ICC, 711 F.2d 295, 328 (D.C. Cir. 1983). Moreover, if a rule

of procedure “substantively affects the public” in some 

ancillary way, it might require notice and comment because of 

those impacts. Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland 

Sec., 653 F.3d 1, 6 (D.C. Cir. 2011) (“EPIC”) (recognizing the 

“personal privacy” impact on the public of TSA technology 

that produced “an image of the unclothed passenger”).

Instead of following these decisions, the majority in effect

applies a 1970s framework in which “substantial impact” was 

the touchstone of a substantive rule. See Pickus v. U.S. Bd. of 

Parole, 507 F.2d 1107, 1112 (D.C. Cir. 1974). While nodding 

to our more recent cases, the majority primarily evaluates 

whether the 2019 Rule has something like a “substantial 

impact” on the parties. The majority begins its analysis of each 

rule by looking at the degree to which “substantial” rights or 

interests are impacted. This is the wrong threshold question—

at the outset we consider whether a rule regulates primary or 

secondary conduct. A rule is presumed procedural when it 

regulates only secondary conduct and the mere fact that such a 

rule impacts legal rights does not make it a substantive rule. 

The majority avoids the language of substantial impact, but 

uses synonyms that amount to the same thing, considering

whether the Rule “direct[ly] impact[s],” “burdens,” “affects,”

“curtails,” or “trenches on” various rights and interests.

The majority’s analysis is directly at odds with this 

circuit’s more recent decisions. We have repeatedly held that a 

“substantial impact” or “substantial burden” does not make a 

rule substantive. See Glickman, 229 F.3d at 281 (“[E]ven if the 

[rule] did impose a substantial burden ... that burden would not 

convert the rule into a substantive one that triggers the APA’s 
6

notice-and-comment requirement.”); EPIC, 653 F.3d at 5 (“[A] 

rule with a ‘substantial impact’ upon the persons subject to it is 

not necessarily a substantive rule under § 553(b)(3)(A).”); cf.

Cabais v. Egger, 690 F.2d 234, 237 (D.C. Cir. 1982) (noting, 

in the context of interpretive rules, that just because an “agency 

action has substantial impact does not mean it is subject to 

notice and comment”). We retired the substantial impact or 

burden test because “even unambiguously procedural measures 

affect parties to some degree.” Pub. Citizen, 276 F.3d at 640 

(cleaned up).

Moreover, determining whether a rule impacted, affected, 

or burdened substantive rights did not track the text of the APA

or comply with the Supreme Court’s command in Vermont 

Yankee to avoid extratextual procedures. See Cabais, 690 F.2d 

at 237 (“Since Vermont Yankee, it is clear that a court cannot 

engraft additional procedures on agency action beyond those 

contemplated by the APA.”) (cleaned up). As we have 

recognized, “[o]f course, procedure impacts ... outcomes and 

thus can virtually always be described as affecting substance, 

but to pursue that line of analysis results in the obliteration of 

the distinction that Congress demanded.” JEM Broad., 22 F.3d 

at 326 (quoting Air Transp., 900 F.2d at 383 (Silberman, J., 

dissenting)).

If a rule is procedural on its face that will usually be the 

end of the matter unless the effects of the rule are “sufficiently 

grave” or create an “extreme procedural hurdle.” Lamoille 

Valley, 711 F.2d at 328. In true boundary cases, our standards 

recognize that the distinction between procedural and 

substantive rules may collapse and that unusual or onerous 

procedures may in fact be more akin to substantive rules. 

Considering the edge cases of “extreme procedural hurdles” 

ensures agencies are not regulating the primary conduct of 

private parties without public notice and comment.
7

To summarize, for a procedural rule to fit within the 

APA’s exception to notice and comment requirements, it must 

regulate secondary conduct and not enshrine a substantive 

value judgment. Because all procedural rules have some impact 

on how rights are exercised, we no longer apply the type of 

sliding scale called for by the substantial impact test, which 

required courts to somehow assess the magnitude of effects on 

regulated parties of a rule of agency procedure. The extent of 

the impacts or burdens on primary rights does not provide the 

dividing line between substantive and procedural rules, 

although it may mark when a procedural rule has such extreme 

effects that it is properly considered substantive.

III.

The 2019 Rule does not encode a substantive value 

judgment, and it governs only secondary conduct by

establishing procedures for representation elections. The 

relevant primary conduct, namely the rights protected by the 

National Labor Relations Act, is employee representation for 

the purpose of collective bargaining, which must be determined 

in “an election by secret ballot.” See 29 U.S.C. § 159(c)(1).

These rights remain untouched by the Rule. The majority does 

not contest the Rule governs secondary conduct. Rather the 

majority simply applies the old standard and tries to gauge the 

extent of any impacts of these procedural choices on the rights 

of unions and employers.

Applying the correct standards, the critical fact for the 

challenged provisions in the 2019 Rule is that they do not 

change the “substantive standards” governing who wins and 

who loses elections, or who is part of the bargaining unit. See 

Jem Broad., 22 F.3d at 327. The majority never claims they do.

Instead, each provision changes the details of how an election 

is conducted. Any substantive effect is incidental. See Bowen, 
8

834 F.2d at 1047. The effects of the rule are apparently minor, 

as the majority nowhere suggests that the procedures have 

grave or extreme impacts. The five provisions are properly 

classified as procedural, and therefore notice and comment was 

not required for any of them. I address each of the rules in turn.

A.

Pre-Election Litigation Timing. Employers and unions 

may disagree about which employees are part of the bargaining 

unit and thus eligible to vote in any election. If such a dispute

arises, the parties may resolve it by agreement or by 

adjudication in front of the Board. Under the 2014 Rule, the 

election would go forward, even if a dispute were still pending. 

79 Fed. Reg. at 74,482. The 2019 Rule reverses the timing:

“Disputes concerning unit scope, voter eligibility and 

supervisory status will normally be litigated and resolved by 

the Regional Director before an election is directed.” 84 Fed. 

Reg. at 69,593. This is a classic procedural rule that favors

finality over speed and reflects no substantive value judgments. 

The provision does not change whether the election will occur 

or who will win, only when and how the election happens. I 

agree that this is a procedural rule. Maj. Op. 37.

B.

Election Scheduling. Once a regional director orders an 

election, it must be scheduled. The 2019 Rule requires that the 

election be scheduled on “the earliest date practicable” but 

“normally not ... before the 20th business day after” an election 

is directed. 84 Fed. Reg. at 69,595. The 2014 Rule, on the other 

hand, required elections to be scheduled as early as practicable.

79 Fed. Reg. at 74,485. Such scheduling implicates no 

substantive value judgment, but rather promotes the procedural 

concern for finality, allowing the Board sufficient time to 

resolve eligibility disputes in advance. As with the provision 
9

concerning pre-election litigation, this provision does not 

change whether the election will occur, only when. The 20-day 

provision is also procedural, as the majority concludes. Maj. 

Op. 41.

C.

Voter List Timing. Once an election has been directed, the 

employer must provide a list of all eligible voters to the union 

and the Board. This voter list contains names, job titles, and 

contact information to facilitate the union’s campaign 

activities. Before 2014, employers had seven days to turn over 

the list. 84 Fed. Reg. at 69,527. The 2014 Rule reduced the time 

to two business days. Id. The 2019 Rule provides five business 

days. Id. at 69,526. The majority concludes the provision is 

substantive because it “‘trenches on’ the union’s substantive 

interest in campaigning on equal footing.” Maj. Op. 20. The 

majority, however, applies the wrong legal standard and 

therefore reaches the wrong legal conclusion.

To begin with, the rule is facially procedural because it 

does not “alter the substantive criteria” by which elections are 

won or lost. See Glickman, 229 F.3d at 281. Five business days 

for exchanging voter lists embodies no substantive value

judgment and merely implements an established pre-election 

procedure. In moving from two to five days, the Board 

explained that “providing more time to produce the voter list 

will reduce the potential for inaccurate lists, as well as the 

litigation and additional party and Agency expenditures that 

may result therefrom.”284 Fed. Reg. at 69,532. The rule serves 

2 The majority asserts five days is unreasonable because the Board in 

2014 found two days a reasonable time frame for providing the voter 

lists. Maj. Op. 22. But what the Board thought reasonable at one time 

cannot serve as the perennial benchmark for what is reasonable in the

future. Importantly, here the Board recognized that although 
10

procedural concerns, like facilitating accurate lists, promoting 

agreement, and avoiding litigation. Id. at 69,532.

When a procedural rule concerns the timeframe for 

asserting substantive rights, “the proper question is whether the 

time allotted is so short as to foreclose effective opportunity to 

make one’s case on the merits.” Lamoille Valley, 711 F.2d at 

328. An unusually short time frame could impose the type of 

“extreme procedural hurdle[]” that converts a procedural rule 

into a substantive one. Id. No extreme hurdle exists here. 

Moving from two business days to five, in a pre-election period 

that normally lasts a minimum of 20 business days, hardly 

forecloses a union’s ability to campaign or imposes an extreme 

procedural hurdle. Rather it is the type of “incidental 

mechanical burden[] on regulated” parties that we have 

classified as procedural. See Bowen, 834 F.2d at 1051.

The majority does not identify any substantive value 

judgment encoded in the voter list provision. Nor does it 

suggest that the rule regulates primary conduct. Instead, the 

majority concludes the provision is substantive because the 

union has an “interest in campaigning on equal footing” and 

the voter list provision “necessarily burdens [that] interest.”

Maj. Op. 21. This analysis effectively returns to the obsolete

“substantial impacts” test, here perhaps just an “impacts” test. 

See Maj. Op. 26 (expressing skepticism that three days “has de 

minimis impact”) (cleaned up).

“technological changes ... may permit some employers to more 

quickly compile and transmit the voter list,” this was not true for all 

employers and additional challenges existed for “decentralized 

employers,” the “construction industry,” and “joint or multiemployer arrangements.” 84 Fed. Reg. at 69,531–32. In light of that 

finding, the Board could reasonably adjust the timeline for providing 

voter lists.
11

On the majority’s reasoning, election rules will rarely be 

procedural, and the Board has been acting improperly for 

decades.3 The reality, of course, is that every election rule will 

have some impact on the parties to an election. The majority’s 

reasoning is precisely that the burden, which looks a lot like a 

“substantial impact,” makes the rule substantive. This runs 

contrary to this court’s repeated recognition that all procedural 

rules place some burden on regulated parties and therefore that

such burden alone does not make a rule substantive. See, e.g., 

Glickman, 229 F.3d at 281 (“[A]n otherwise-procedural rule 

does not become a substantive one, for notice-and-comment 

purposes, simply because it imposes a burden on regulated 

parties.”).

Two days is reasonable to wait for a voter list, but not 

five—what about three or four days? Judicial parsing of an 

agency’s procedural choices has never been the standard for 

drawing a line between substantive and procedural rules. Under 

our precedents, in the absence of some showing that the fiveday timeline effectively forecloses the union’s rights, simply 

stating that the rule imposes some burdens does not make it a 

substantive rule.

D.

Certification Timing. The regional directors “shall certify 

the results” of representation elections. 29 U.S.C. § 159(c)(1);

3 The majority also emphasizes the voter list “facilitates the 

transmission of information between parties,” not just between one 

party and the Board. Maj. Op. 23. But a procedure governing conduct 

between parties with respect to an election supervised by the Board 

can be a procedural rule under section 553(b)(A), and I am aware of 

no case in which we have held that a rule of procedure becomes

“substantive” simply because it governed the procedure between 

parties to an agency proceeding. 
12

see also id. § 153(b). Under the 2014 Rule, certification 

proceeded regardless of whether a request for review of the 

election was pending before the Board. 79 Fed. Reg. at 74,487. 

Under the 2019 Rule, a regional director may certify election 

results only after Board review is complete. 84 Fed. Reg. at 

69,526. Like the other provisions, the timing for certification 

governs the procedures of elections. It does not affect who wins 

or loses an election, and it does not change the substantive 

criteria for representation. See Glickman, 229 F.3d at 281. 

Delaying certification until Board review is complete may 

affect the right to bargain because certification is the moment 

from which substantive legal rights attach. See 29 U.S.C. 

§ 158(a)(5). The majority considers this “effect ... on the right 

to collective bargaining” sufficient to make the certification 

timing a substantive rule. Maj. Op. 29 (discussing the Rule’s 

“direct impact”). This again misstates the relevant standards, 

because we do not consider the “effect” or “direct impact” of 

procedural requirements to gauge whether they are a 

substantive regulation. Choosing to delay certification does not 

reflect a substantive value judgment. When the “timetable for 

asserting substantive rights” is at issue, “the proper question is 

whether the time allotted is so short as to foreclose effective 

opportunity to make one’s case on the merits.” Lamoille Valley, 

711 F.2d at 328. Or put another way, agencies are allowed to 

“establish a terminal point” in procedural rules, even if the 

timing of substantive rights are affected. See JEM Broad., 22 

F.3d at 326. Only when a procedural timeline is “sufficiently 

grave” does it become a substantive rule.

The certification timing rule simply requires the regional 

director to wait for Board review before certifying the results 

of an election. The rule does not change whether certification 

will occur or whether employees will be represented. Instead, 

it sequences the Board and regional director’s actions to 
13

promote certainty and finality and avoid unnecessary litigation. 

The majority does not suggest the timeline here would have any 

grave impacts, perhaps because in practice the additional delay

from the 2019 Rule ranges from minimal to nonexistent. To 

challenge an election in court, the employer must “refuse to 

bargain with the union certified by the Board” and wait for “an 

unfair labor practice complaint” to be filed. Physicians Nat’l 

House Staff Ass’n v. Fanning, 642 F.2d 492, 495 (D.C. Cir. 

1980) (en banc). Yet, if the election is complete, the employer 

has a legal obligation to bargain. To mitigate this catch-22, 

regional directors “generally hold refusal-to-bargain charges in 

abeyance” pending an employer’s challenge to the election.484 

Fed. Reg. at 69,555. As a practical matter, this means the legal 

rights flowing from certification, namely rights to collective 

bargaining, are usually stayed, which for all intents and 

purposes is the same as staying certification. The 2019 Rule

delays certification until after Board review, which has the

same results as the 2014 Rule, but without “needless 

litigation.” Id.

Numerous decisions of this circuit have recognized that 

rules adjusting the timing for exercising substantive rights are 

procedural. For instance, in Public Citizen, we addressed a 

State Department policy against searching for any FOIA 

documents produced after the date of the request. 276 F.3d at 

637. The FOIA policy affected what documents would be 

produced. See id. We nonetheless found the so-called “cut-off

policy” encoded “no substantive value judgment” because it

applied equally to all FOIA requests. Id. at 641 (cleaned up). 

Therefore, we concluded the policy was a “prototypical 

4 The majority labels the practice of staying refusal-to-bargain 

charges as “underenforcement.” Maj. Op. 27. But a stay is not 

underenforcement, just delayed enforcement, which is why this 

provision is procedural.
14

procedural rule properly promulgated without notice and 

comment.” Id. Similarly, in Lamoille Valley, a rule shortened

the timeline for railroads to respond to a proposed merger from 

90 days to 60 days. 711 F.2d at 327. Because it was a 

procedural schedule that did not foreclose the effective 

opportunity to win on the merits, we upheld it as a procedural 

rule. Id. at 328. Finally, in JEM Broadcasting, we found a rule 

establishing a “fixed filing period” of 30 days for FM station 

license applications, with no opportunity to correct, was a 

“straightforward” procedural rule. 22 F.3d at 322, 326. 

Although the rule could be “described as affecting substance” 

and might even be “harsh” in some cases, it did not change the 

“substantive standards by which the FCC evaluate[d] license 

applications.” Id. at 326–27 (cleaned up). This was fatal to the 

claim that the rule was substantive. The court concluded that 

establishing a cut-off date was part of a necessary and 

reasonable procedural rule. Id. at 327.

The majority fails to distinguish these cases. It makes a 

puzzling suggestion that there is a material difference between 

“asserting” and “exercising” substantive rights, such that the 

timing for asserting rights is procedural, but the timing for 

exercising rights is substantive. Maj. Op. 27–28. Yet the 

assertion and exercise of rights is invariably linked, and so it is 

unsurprising that the majority’s distinction finds no support in 

the APA and has been rejected by our caselaw.

The majority’s approach—labeling some rights 

substantive and important and others less so—will result in 

uncertainty and produces contradictory results even in this 

case. Delayed certification is supposedly substantive because it 

“directly alters an employer’s legal duty and its employees’ 

associated substantive right.” Maj. Op. 40. On this reasoning, 

the rule that postpones an election for some 20 days would also 

be substantive because it necessarily postpones certification 
15

and the attachment of the employer’s legal duty. Yet the 

majority properly classifies the 20-day rule as procedural. 

Because both rules have some effects or impacts on the parties’ 

rights, the majority’s different treatment amounts to finding 

one provision has more substantial effects than the other, in 

contravention of our caselaw.

Most timelines for regulatory procedure have some impact 

on substantive rights, but without a showing that the timeline 

egregiously undermines those rights, we have accepted them as

an ordinary and essential aspect of agency procedures. Like the 

20-day rule, the certification timing provision is a reasonable 

procedural choice and notice and comment was not necessary.

E.

Election Observer Qualifications. From its earliest days, 

the Board has allowed parties to have observers at elections as 

a “courtesy” or “privilege.” 84 Fed. Reg. at 69,551. The Board 

has held it is not an abuse of discretion to revoke this courtesy. 

Id. Although the Board generally lets the parties select their 

own observers, that practice is subject to limitations imposed 

by the regional directors or the Board. To make this process 

more transparent and efficient, the 2019 Rule provides that 

“whenever possible, a party shall select a current member of 

the voting unit as its observer, and when no such individual is 

available, a party should select a current nonsupervisory 

employee as its observer.” Id. at 69,552.

This is a typical procedural rule. It streamlines a 

discretionary process the Board has created to improve the 

administration of elections. A rule is properly classified as 

procedural if it addresses secondary conduct. The procedural 

exception “covers agency actions that do not themselves alter 

the rights or interests of parties, although it may alter the 

manner in which the parties present themselves.” See JEM
16

Broad., 22 F.3d at 326 (quoting Batterton v. Marshall, 648 F.2d 

694, 707 (D.C. Cir. 1980)). The “rights or interests of parties” 

in this context means primary rights and interests, not an 

interest in a particular kind of procedure. See id. at 328. 

Because the election observer provision does not alter the 

scope of representation, it does not impose a new “substantive 

burden.” Maj. Op. 33 (cleaned up).

The majority cannot label the election observer rule as 

substantive because the rule does not encode a substantive

value judgment. The Board’s judgment, to allow non-Board 

observers, is a procedural one. The wholly discretionary 

practice of allowing election observers helps “assure the parties 

and the employees that the election is being conducted fairly” 

and avoids the appearance of “partiality on the part of the 

Board.” 84 Fed. Reg. at 69,551. The point is transparency in an 

election procedure under the control of the Board. This is not a 

“substantive value judgment” within the meaning of our cases.

All actions are necessarily “based on the value judgment that 

the chosen option is better, in some relevant way.” Glickman, 

229 F.3d at 282. When that value judgment goes to procedural 

values, like ensuring agency operations are accurate, 

transparent, and efficient, the rule is properly procedural. See 

JEM Broad., 22 F.3d at 328.

The majority also misidentifies the relevant substantive 

interest. The parties have no interest in election observers for 

their own sake. Observation is just one procedure that helps 

protect the right to collective bargaining. See 29 U.S.C. 

§ 159(a). Such procedures are ordinarily not substantive, even 

though they may impact substantive rights. For instance, we 

have held that a rule requiring audits be performed by 

nonagency accountants was procedural because the substantive 

requirement of an audit was unchanged—the rule affected only 

the question of how to “satisfy the audit requirement.”
17

Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins.

Corp., 589 F.2d 658, 665 (D.C. Cir. 1978) (cleaned up). Here, 

an election observer is like an auditor. A party might want a

particular observer, but only because the observer helps it 

assert a substantive interest, not because the choice of observer 

changes that substantive interest.

The majority does not identify what effects the election 

observer rule will have on the outcome of elections. In fact, it 

is hard to imagine it will have any. The mere fact that the rule 

may have some impact on elections does not suffice to turn a 

facially procedural rule into a substantive one. Nor does the 

majority find, as it must, that the effects here are “sufficiently 

grave.” See Lamoille Valley 711 F.2d at 328. The election 

observer rule is procedural and should be upheld.

* * *

The 2019 Rule does not change the scope of collective 

bargaining or the standards by which those rights are reviewed; 

rather, it adjusts schedules, timelines, and monitoring

mechanisms. Like all procedural rules, the challenged 

provisions may affect how parties exercise their rights, but 

nothing here imposes the type of extreme procedural hurdle

that converts a facially procedural rule into a substantive one. 

Under this circuit’s precedents, each of the provisions is 

properly classified as a procedural rule and therefore was 

permissibly promulgated without notice and comment.

IV.

Before 2014, when a party sought review within 14 days 

of the direction of an election, all ballots were impounded and 

remained unopened pending review. 84 Fed. Reg. at 69,547.

The 2014 Rule eliminated the impoundment provision. The 

2019 Rule charts a middle course. Now if a party files for 
18

review within ten days of the direction of an election, disputed 

ballots are segregated and impounded pending a decision of the 

Board. A request for review may be filed later than ten days, 

but ballots are not impounded. Id. at 69,526.

The parties agree the impoundment provision is 

procedural. The AFL-CIO argues it should be set aside on two 

grounds: (1) The provision is arbitrary and capricious because 

ballots are automatically impounded, even when review might 

be rendered moot by the election results; and (2) the provision 

is contrary to 29 U.S.C. § 153(b). The majority vacates the 

provision as contrary to law, but I would uphold it as consistent 

with the statute and reasonably explained.

A.

Section 153(b) allows the Board to delegate its power to 

direct and certify elections, except that “the Board may review 

any action of a regional director.” 29 U.S.C. § 153(b). But 

“such a review shall not, unless specifically ordered by the 

Board, operate as a stay of any action taken by the regional 

director.” Id. (emphasis added). To determine whether the 

impoundment provision is consistent with section 153(b) 

requires a two-part inquiry. First, is impoundment a stay? If 

not, there is no section 153(b) violation. Second, if 

impoundment is a stay, was it specifically ordered by the 

Board? If it was so ordered, there is no section 153(b) violation.

The impoundment provision is clearly a stay, as the 

majority agrees. “Stay” is defined as the “[t]he postponement 

or halting of a proceeding, judgment, or the like.” BLACK’S 

LAW DICTIONARY 1639 (10th ed. 2014). Impoundment, the 

Board admits, “postpones” the tallying of ballots. 84 Fed. Reg. 

at 69,548. Counting ballots is an “action” a regional director 

may take as part of his delegated authority to “direct an 

election” and “certify the results thereof.” 29 U.S.C. § 153(b). 
19

Therefore, counting is a statutory “action” of the director, and 

impoundment stays that action.5

The plain language of the statute is reinforced by the 

impoundment provision in the 2019 Rule:

The filing of such a request shall not, unless 

otherwise ordered by the Board, operate as a stay 

of the election ..., except that if a request for 

review of a decision and direction of election is 

filed within 10 business days ..., ballots whose 

validity might be affected by the Board’s ruling 

... shall be impounded and remain unopened 

pending such ruling or decision.

29 C.F.R. § 102.67(c) (emphasis added); see also id.

§ 102.67(h) (“The grant of a request for review shall not, 

outside [29 C.F.R. § 102.67(c)], stay the Regional Director’s 

action.”) (emphasis added). Because impoundment is an 

exception to the rule that review does not operate as a stay, the 

Rule clearly specifies that impoundment will act as a stay.

Next, we must consider whether the impoundment 

provision in the 2019 Rule was “specifically ordered by the 

5 The Board argues that “taken” can mean actions in the past, present, 

or future because “taken” is a participial adjective modifying the 

noun “action.” In isolation, a past participle has no temporal 

limitation and may refer, as the Board suggests, to past, present, or 

future action. When, however, a participle is postpositive, i.e.,

appearing after the noun, it is timeless. In section 153(b), context and

placement of the participle clarify its temporal reach. The participle 

“taken” appears after the noun it modifies: “any action taken by the 

regional director.” That means it applies to past, present, and future

actions. Because impoundment is an “action taken” by the director,

it fits within section 153(b).
20

Board.” 29 U.S.C. § 153(b). By promulgating a rule that

provides conditions for when the impoundment will occur, the 

Board has specifically ordered a stay. The Board has discretion 

to delegate its power to direct and certify elections, and it 

retains the authority to review or withdraw that delegated 

power. While section 153(b) ensures that review by the Board 

will not operate as an implicit stay, the Board may stay the 

actions of a regional director at will. Nothing in the statute 

forecloses the Board from enacting a rule that establishes

prospective criteria for when the actions will be stayed. Indeed, 

such rulemaking has the advantage of providing notice and 

predictability to parties. The impoundment provision was a 

specific order to issue stays in certain conditions.

The majority maintains that a stay may be ordered only “in 

a particular case.” Maj. Op. 46. Of course, the Board may order 

a stay in a particular case, but nothing in section 153(b) 

precludes the Board from ordering a stay through rulemaking.

Section 153(b) simply states: “such a review shall not, unless 

specifically ordered by the Board, operate as a stay.” The 

clause “unless specifically ordered by the Board” is not 

explicitly limited to reviews in a particular case, and so the 

Board may order a stay in a particular case, or it may issue an 

order through prospective rules. Section 153(b) does not 

constrain the Board’s choice.

The impoundment provision of the 2019 Rule is a stay 

specifically ordered by the Board and therefore is consistent 

with section 153(b).

B.

As I conclude the impoundment provision is consistent 

with the statute, I must address the AFL-CIO’s argument that 

the provision is arbitrary and capricious because it creates 

uncertainty in the time between election and certification and 
21

forces the Board to decide issues that may be moot. Under 

arbitrary and capricious review we consider whether the 

agency’s decision is “reasonable and reasonably explained.”

FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 

(2021). The court should not substitute its policy judgments for 

that of the agency. Instead, we ask whether the agency has 

“considered the relevant issues” and adequately “explained the 

decision.” Id. Here, we must recognize that “control of the 

election proceeding, and the determination of the steps 

necessary to conduct that election fairly were matters which 

Congress entrusted to the Board alone.” NLRB v. Waterman 

S.S. Corp., 309 U.S. 206, 226 (1940).

In the 2019 Rule, the Board explained the impoundment 

provision will promote finality and certainty by preventing an 

immediate tally of the ballots from being invalidated after 

Board review. 84 Fed. Reg. at 69,548. It also noted a general 

rule will promote transparency and uniformity because all 

requests for review within ten days will stay the election 

pending review. Id. Finally, the Board noted that impoundment 

promotes ballot secrecy by hiding the sentiments of employees 

whose votes might be nullified upon future review. Id. These

reasons comport with the Board’s responsibility for ensuring 

the efficient administration of fair elections and were 

reasonably explained.

The AFL-CIO’s concern—that the Board will conduct 

reviews that will be rendered moot by the election—was 

addressed by the Board. The Board recognized that 

impoundment comes with some cost to “promptness and 

efficiency,” but concluded such concerns were outweighed by 

the gains in finality, transparency, uniformity, and secrecy. 84 

Fed. Reg. at 69,548. It was reasonable to conclude these gains 

also outweighed any concerns that employers would be unsure 

how to act after an election, but before results are tallied. With 
22

the 2014 Rule, that uncertainty simply existed at a different 

time: after certification, but before the end of the review 

process. Id. at 69,555 (“[W]here a certification issues 

notwithstanding the (potential) pendency of a request for 

review that may nullify the certification, the possibility for 

confusion is greatly amplified.”).

The AFL-CIO may prefer a different procedure, but that 

does not render the Board’s judgment unreasonable. These 

procedural judgments are well within the Board’s statutory 

authority to manage elections. Therefore, the impoundment 

provision is not arbitrary or capricious.

* * *

I concur in the judgment with respect to our jurisdiction 

and the holding that the Board’s 2019 Rule is not arbitrary and 

capricious. I part ways with the majority because I would hold 

the Rule’s impoundment provision is consistent with law and 

reasonably explained and that all five challenged provisions of 

the 2019 Rule are procedural.

The administrative law distinctions relevant to 

determining whether the Rule survives challenge are 

admittedly in the weeds. The APA requires notice and 

comment for substantive rules, but explicitly exempts 

procedural rules from these requirements. Drawing the proper 

line between procedural and substantive rules has important 

consequences, both to ensure that courts do not layer additional 

requirements on an agency’s procedural rules and also to

ensure that agencies follow the requirements of notice and 

comment when imposing substantive value judgments against 

regulated parties. The majority distinguishes substantive from 

procedural rules by analyzing the extent of the burden on 

regulated parties—but such weighing of impacts is not what the 

APA requires and has been decisively rejected by this court. 
23

The majority emphasizes the importance of the Board’s 

election procedures to collective bargaining rights. It is true

that agency procedures are often consequential and impact

parties’ rights. Nonetheless, our cases maintain that only rules 

regulating primary conduct or those with particularly grave 

effects are substantive, and the rules here are neither.

Applying our circuit’s precedents, the 2019 Rule is

procedural and therefore no notice and comment was 

necessary. Because I would uphold the 2019 Rule in full, I 

respectfully dissent in part.